NEVER TOLERATE TYRANNY!....Conservative voices from the GRASSROOTS.

The Filibuster Wasn’t Handed Down From God Or The Founding Fathers,...

Poor Aaron Burr can’t seem to catch a break. First, he is cast as the villain in Lin Manuel Miranda’s play, “Hamilton.” Then, scholars discover he is responsible for the filibuster. Yes, the very same Aaron Burr.

It seems that the original rules of the Senate provided that senators could close debate by moving the previous question. Under those rules, debate could be closed by a majority vote of the Senate. However, the motion was used only once while Burr presided over the Senate as vice president, so he casually suggested that when the Senate revised its rules, they should omit the motion for previous question, as it had only been used that measly one time.

So, in 1806, the Senate removed the rule regarding previous questions, which opened the floor to unlimited debate—a.k.a. the filibuster.

The filibuster is not in the Constitution. It was not allowed in the British Parliament after 1604 and thus was not part of the laws existing at the time of the American founding. It is a creature born of an accidental omission from the rules.

A Short History of the Filibuster

In keeping with its inauspicious birth, the procedure was not used until 1837, when a group of pro-Jackson senators sought to expunge President Jackson’s censure from the Congressional Record (Jackson had been censured by the Senate for removing federal deposits from the National Bank). The anti-Jackson senators filibustered until midnight, but were persuaded to stand down and let the measure pass (although they walked out).

In 1841, Henry Clay tried to abolish it.

There were few filibusters in the nineteenth century, despite the intense partisanship of the era. In 1917, Sen. Robert LaFollette led a group of 11 senators on a filibuster of the Armed Ship Act, which would have armed U.S. merchantmen following the sinking of the Lusitania. President Wilson castigated them as a “little group of willful men” and demanded that the Senate adopt a rule to prevent filibusters. It did, resulting in rule XXII, which allowed the Senate to close debate (“cloture”) by a vote of two-thirds of those senators present and voting.

Of course, those of a certain age and film buffs associate the popular image of the filibuster as Jimmy Stewart in “Mr. Smith Goes to Washington.” In that film, Stewart’s passionate Sen. Jefferson Smith holds the Senate floor in defense of the “little guy” against entrenched special interests.

It made for great cinema. It was nominated for 11 Academy Awards, screened by the National Press Club for its 1939 opening night in Washington DC, panned as anti-American and pro-Communist, and banned in Hitler’s Germany, Mussolini’s Italy, Franco’s Spain and Stalin’s Russia.

But the Filibuster Isn’t Scripture

The real-life version of that cinematic portrayal was Sen. Strom Thurmond holding the floor for 24 hours to defeat the 1957 Civil Rights Act. In the ’20s, ’30s and ’40s, filibusters were used to defeat anti-lynching bills and other civil rights legislation.

The filibuster has been reformed, modified, expanded and contracted over the years. It has and has not included presidential nominations and judges, motions, legislation, and treaties. Cloture has variously required a vote of two-thirds of the body, two-thirds of those present, and three-fifths of the body. It has come a long way from the original rules of the Senate, which allowed debate to be closed by a simple majority vote.

As we consider the filibuster in light of the nomination of Neil Gorsuch to the Supreme Court, we should keep in mind its history. The filibuster is not in the Constitution. The filibuster was not part of the original rules of the Senate. The filibuster and the rule on cloture have been changed many times throughout U.S. history. Perhaps the Senate should consider changing once more and returning to our constitutional and procedural roots. It is time to abolish the filibuster.

John Ryder is co-chair of the Republican National Lawyers Association (RNLA). He served for the past four years as general counsel to the RNC. He practices law with Harris Shelton, Hanover Walsh in Memphis, TN. He teaches election law as an adjunct professor at Vanderbilt University.

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Comment by Jim Delaney on April 5, 2017 at 3:44pm

Excellent, informative. Thank you!

Comment by PHILIP SCHNEIDER on April 5, 2017 at 1:14pm

Excellent timing on this information Kathryn.

The Supreme Court nominee Neil Gorsuch faces a filibuster by the democrats this week. The democrats and the machine media have already stated they will filibuster his nomination. They are intent on keeping the Republicans from gaining ANY power in the control of our nation. More than that, their hatred for President Trump has morphed into all out political war the likes of which this nation hasn't seen since secession and the war between the states.

I have to laugh at the continuing face of our nation's politics. There can be no grander display of undignified human behavior. Take for instance senator Strom Thurmond who served 48 years in the senate. He started life as a democrat changed to a Republican and as noted above led the fight AGAINST the Civil Rights Act of 1957.

 I was hesitant letting go of the filibuster but Kathryn, after your review blog I now willingly accept it.






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