politics

A little nitpick on how we got to the modern silent filibuster, because I think the history is important and demonstrates how creating rules that might seem well-intentioned at the time end up having disastrous effects when you don't think about the long-term impacts.

Literally everything about the evolution of the filibuster was the result of unintended consequences. When the Senate was first created, they included a rule which was common among legislatures in Colonial American and England called the "previous question" rule. There were no rules on how long debate could take place, but, at any time (including in the middle of a speaker's turn) anyone could call for the immediate consideration of the previous question. If that got a majority support (50%+1), debate was immediately stopped and the issue was put to an immediate vote. The word 'filibuster' didn't exist at the time, but this was very similar to our modern cloture motion, which is used to end filibusters, except the previous question only required a simple majority of those present, where was cloture requires 3/5 of all members (including those not present). The previous question was a lower bar to clear than cloture is.

However, in the early days of the Senate it was a very collegial institution. All the Senators, even those opposed to each other on policy, were all friendly with each other. As such, after the first 15ish years, they had never had the need to use the previous question rule. Whenever a Senator was taking too long during debate, someone would gently tell them to wrap it up and they would. They relied more on the collegial atmosphere and friendships than the actual rules. In 1805, then-VP Aaron Burr (of murdering Hamilton and trying to steal half of North America to turn himself into a monarch fame) wanted to reform Senate rules. Mostly, he was trying to eliminate unnecessary rules to streamline the Senate. One of the rules he got rid of was the previous question. The intention was just to get rid of a rule that had never been used, but this effectively meant that there was no longer any institutional way to end debate if a Senator decided to just keep talking.

This didn't have much of an impact for about a century. There were occasional filibusters here and there, but they were very limited and extremely rare. The top issue that got filibusters was anything related to slavery and (after the Civil War) civil rights. Senators from slave states (or former slave states), would filibuster any legislation they saw as a threat to slavery and white supremacy. In general, these filibusters ended because the Senators who introduced whatever piece of legislation would withdraw their legislation and offer to water it down in exchange for an end to the filibuster. In this way, over the 19th century the predominate use of the filibuster was to prevent or slow reforms that would weaken white supremacy.

As time went on, the use of the filibuster increased in frequency. The general way it would work was that a bill would be introduced. A group of Senators from the minority opposing it would organize to filibuster. Rather than just 1 person holding the floor, they'd swap out using a rule that allows the speaker to temporarily cede the floor for a question, but they'd get the floor back when the question ended. But their allied Senator who was ostensibly just asking a question would then spend hours asking that question, which gave the filibuster leader time to take a break. When they were ready to continue, the question would end and the floor would go back to the original speaker. In the meantime, the allies of the filibustering Senators would meet with the sponsors of the legislation to get them to water down their bill in whatever way that made it acceptable. Once that agreement was made, they'd end the filibuster and move on. It's important to note that the filibuster at this time was not seen as a tool to kill legislation, but rather to force a concession.

The culminated in 1917 when Woodrow Wilson was trying to get a law passed that would allow the Navy to arm merchant ships during WW1. A group of anti-war Senators filibustered and got this provision removed. This enraged Wilson and he insisted the Senate adopt a cloture rule which would allow 2/3 of the Senators present in the chamber to vote to immediately end debate and bring the issue to a vote (this would later be changed to 3/5 of all members, regardless if they were present in the chamber). The existence of this rule dramatically changed how the filibuster was used. Rather than being a tool to force a concession, it now became something that could actually kill legislation. The supporters now had to arrange to have a 2/3 majority in the chamber when the cloture vote was pulled in order to pass the legislation. This shifted power from the majority to the minority. The minority just had to ensure they controlled 1/3+1 of the chamber at any given time to prevent cloture. Rather than the impetus being on the minority to actually continue the filibuster and negotiate a concession, it was now on the majority to produce a super-majority. The intention was to create a rule that prevented Senate business from being ground to a halt, but the effect was just the opposite. It gave more power to the minority than the majority.

This directly led to an increase in the frequency of use of the filibuster. Over the next half-century the filibuster was primarily used to prevent any Civil Rights Legislation from reforming the Jim Crow South. Since there was now a real possibility that a filibuster could actually kill a bill, there was no longer any reason for the filibustering party to negotiate concessions with the majority. They just sat back and continued their filibusters until the majority either got sick of it and pulled the bill or managed to produce a super-majority (which has always been damn near impossible in the Senate, only 2 cloture votes were ever successful between 1917-1964). This culminated in 1964 with a filibuster against the Civil Rights Act of 1964 (which, when it eventually passed, effectively ended Jim Crow). A group of segregationist Senators from the South organized to filibuster for over 2 months. Whenever the Senate was in session over those 2 months, the segregationists held the floor and mostly spewed racists screeds about the evils of integration and other white supremacist nonsense. Eventually the pro-Civil Rights caucus managed to get a few people who were just sick of the unending filibuster and passed a cloture motion. However, this was a huge embarrassment for the Senate and they knew they needed to change the rules.

The problem, as they saw it, was that only a single issue was allowed before the Senate at a time. When a bill or nomination vote, etc was put forth, that issue had to be fully resolved before they could move onto the next thing. Either it had to get a vote up or down, or the sponsor had to pull it (meaning the issue was dead). During this time, no other Senate business can happen. No other issues can be debated or voted upon. Committees can't meet. Nothing else can happen. So when the segregationists filibustered the Civil Rights Act for 2 months, literally NO other Senate business was able to happen. This was an extremely high profile bill (it had originally be proposed, filibustered, and pulled the previous year while JFK was president, then reintroduce in 1964 after LBJ took office and was promoted as JFK's legacy), so it couldn't just be pulled to mollify the filibusterers. And this was an election year where 2/3 of the Senate was going back to their home state to ask for another term and had to justify the fact they sat on their asses doing nothing for 2 months while segregationists were allowed to spew white supremacy on the Senate floor.

So, just like Burr did when he eliminated the previous question rule, and just like Wilson did when he insisted on the cloture rule, Senate leadership created a rule aimed at solving the immediate problem without looking at what the long-term implications were. They created the multi-track legislative process we have today. Under this system, the Senate Majority Leader could take whatever issue was before the Senate now and "temporarily" table it so they could move on to another issue. Whereas previously an issue had to be either pulled or voted upon before the Senate could move on, now they could just leave it in limbo. The issue wasn't pulled, but it also wouldn't get a vote. The Majority Leader could then go back to it whenever they wanted. The idea was that if a filibuster started, they could switch tracks to something else. If/when they went back to that filibustered issue, the filibustering Senator would get the floor back and could continue, but if they couldn't come up with the votes for cloture (which were now expanded to 3/5 of the entire Senate, which made cloture even more difficult than it was before) they could just move on to something else without wasting the Senate's time.

Again, though, this shifted the entire dynamic of how the filibuster was actually used. The new rules went into place in 1972. The use of the filibuster (just like after cloture was first created in 1917) began to increase, and the speed of increase went up over time. At first, through the 80s and early 90s, a Senator would actually have to start their filibuster before the issue would be put on the back burner and the Senate move on to another issue. By the early 2000s, though, all a Senator had to do was tell the Majority leader they intended to filibuster if the issue came to the floor and the Majority leader would just automatically table it, never even allowing for debate.

i went ahead and called my own senator to be like "why aren't YOU doing this"