Aaron Burr is not to blame for the Senate filibuster
The recent debate over the Senate filibuster has led to a lot of fruitful conversation, but also the revival of bad arguments I hoped to never see again. One such argument is the claim that filibustering exists in the Senate because, in 1805, then-Vice President Burr recommended that the Senate delete its “previous question” motion from its rules. This motion, the argument goes, is the only antidote to filibustering, and essential to future efforts to reform the rules of the chamber.
And it is currently in wide circulation, with adherents including Ezra Klein, Trevor Noah, Sarah Binder, Jamelle Bouie, and Adam Jentleson--all of whom I respect greatly, and offer this post as an opportunity to reconsider their beliefs.
I am not a fan of the “blame Aaron Burr” explanation because:
(1) It’s just factually wrong. It ignores the entire history of filibustering in the U.S. House and the mechanism that majorities in both chambers have always had to restrict obstruction: new precedents based on affirming or rejecting rulings from the presiding officer.
(2) the argument is based on two classic errors by people trying to understand the filibuster—focusing on the Senate, and equating prolonged speaking with filibustering.
(3) The core message of the Burr story is that senators are powerless to determine the debate process in their chambers: senators were unable to stop the emergence of filibustering, and incapable of doing anything about it now.
The actual facts support a contrary view: senators have always had the power to restrict filibustering, and bear constant responsibility for ensuring that the rules of their chamber promote deliberation and effective lawmaking.
This post reviews the history of the previous question (PQ) motion, documents how the PQ was ineffective against filibustering in the U.S. House, and explains how simple majorities in both chambers have always had the power to limit filibustering.
Shooting Alexander Hamilton? Guilty. Causing the Senate filibuster? Innocent.
The Early History of the Previous Question motion in the U.S. Congress
Here is the early history of the previous question in Congress:
In 1789, the House and Senate adopted separate but similar sets of rules. Both sets of rules included a “previous question” motion.
In early usage, this motion did not end debate; it offered listeners an opportunity to decide whether debate should go on, so if a majority supported a PQ motion, debate continued. This was useful for avoiding delicate topics during floor debate, such as whether Matt Gaetz actually transported a minor across state lines for the purpose of statutory rape. (See D.S. Alexander, History and Procedure of the House of Representatives, 181-84; J. Cooper, “The Previous Question: Its Standing as a Precedent for Cloture in the United States Senate, S.Doc. 87-104)
On March 2, 1805, Vice President Aaron Burr recommended that the Senate eliminate its previous question rule—not because it was useful way for majorities to end debate, but because it was redundant with the motion for “indefinite postponement”—that is, putting off a decision on an issue (See Sarah Binder and Steven S. Smith, Politics or Principle, 38). In 1806, the Senate followed through with this recommendation.
Filibustering began in the U.S. House in the lead-up to the War of 1812, particularly as the U.S. sought to navigate the competing trade restrictions of France and Great Britain. (Koger, Filibustering, 60-62).
On February 28, 1811, as a trade-related filibuster threatened to consume the final days of the 11th Congress, a frustrated House member moved the PQ and it passed. As was the practice, the debate began again, but another member raised a point of order that the PQ ended debate—that is, that its “true” meaning is the opposite of what it actually had been. A filibustering member than began to debate this point of order, which gave rise to a 2nd point of order that no debate is permissible on points of order, which was upheld 66-13.
The lessons of this episode are: (1) the meaning of rules is determined by legislative majorities, even if this means completely reversing the traditional interpretation of a term. (2) this tactic can be used to restrict filibustering when formal rules changes themselves face a filibuster. In this sense, there is nothing magic about the words “previous question” when it comes to ending debate; the real magic is a majority that has had enough and is willing to enact reforms by precedent.
Filibustering and the Previous Question in the 19th Century Congress
One version of the “blame Aaron Burr” argument suggests that, because the previous question motion allows a majority to bring debate to a close and the House always had a PQ motion, the U.S. House never had a filibuster problem. The evidence, on the other hand, demonstrates that filibustering was much more common in the 19th century House than the Senate.
To understand this, we have to take off our modern-era blinders and ask, “how did legislators filibuster in the 19th century?” That is, we need to define filibustering by its purpose—legislative delay for strategic gain—rather than the tactic used, such as giving prolonged speeches. And the answer is that they tended to use two tactics that were less physically demanding than standing and speaking:
Dilatory motions: making procedural motions for the purpose of forcing a roll call vote
Disappearing Quorum: when a group of legislators refuse to participate in a roll call vote, hoping that less than a majority of the chamber will vote
Note that the PQ motion did not stop either of these tactics. Several procedural motions (to adjourn, to recess, etc.) had higher precedence over the PQ motion, so an obstructionist faction facing a majority attempting to end debate could simply cycle through dilatory motions while refusing to vote.
Once we know what we are looking for, we learn that the 19th Century House had much more filibustering than the Senate. First, here are the dilatory motions in both chambers:
Dilatory motions in Congress, 1789-1901. See Filibustering for details on how these are defined.
And the disappearing quorum counts:
Disappearing Quorums in Congress, 1789-1901. See Filibustering for details on how these are defined.
In both chambers, we observed MORE filibustering in the House than the Senate, notwithstanding a flurry of dilatory motions related to the Republicans’ organizing of the Senate in 1881.
While it is extremely difficult to measuring obstruction-by-speaking in this century, I did double-check for omitted cases by identifying which chamber is being referenced when the New York Times used the work “filibuster” from 1852-1900. I found that these articles were more likely to refer to the House (notwithstanding a spike of Senate stories in 1893 during a fight about going on the gold standard).
New York Times mentions of the word "filibuster," 1852-1900.
This figure replicates Figure 3.8 from my book, with an added bonus: the green line traces the number of references to “filibuster” in its original sense as piracy, invasions by private armies, or arms smuggling.
A lazy social scientist might conclude from these charts that the previous question causes filibustering—after all, the House had a PQ motion and lots of filibustering...but instead, my book actually concludes that chamber size and workload were key factors driving these patterns. Nonetheless, if anyone says that the House used the previous question motion to prevent filibustering, they are clearly unfamiliar with the actual history of filibustering in the House.
One Neat Trick to Limit Filibustering When the Minority Likes to Filibuster
A more sophisticated version of the “blame Aaron Burr” account is that, while the PQ was pretty pathetic at preventing filibustering in the House, it was absolutely essential to achieving institutional reform in the 19th century House. Without going through the entire history of filibuster reform in the 19th century House, I will simply note that House reformers faced the same problem as modern-day Senate reformers: if filibustering is possible under current rules, any proposal to amend chamber rules is subject to a filibuster as well. I found that during the 19th century, "Fifteen efforts to organize the House, reshape the parliamentary process, elect a Speaker, or change the committee structure of the House were filibustered (Filibustering, 64). Thus we observe a mix of blocked rules changes, some rules changes with at least tacit support from the minority party, and reforms imposed by parliamentary rulings.
Like Dr. Binder, let’s simplify by focusing on the central event in the history of House filibustering: Speaker Reed’s crackdown on disappearing quorums and dilatory motions in 1890. This story is recounted in any history of the U.S. House because it was a turning point toward majority rule in the chamber, and the fight itself was dramatic. The key votes in the contest occurred on two parliamentary rulings:
Jan. 30 to allow the Speaker to count members who were present but not voting toward a quorum, and
Jan. 31 to allow the Speaker to ignore a motion to adjourn. Both were approved by a narrow Republican majority over fierce Democratic opposition, and without a vote on the previous question.
Thus House obstruction was demolished not by application of the PQ motion but by parliamentary precedents.
Two weeks later, these precedents were combined with a set of other proposals to change the formal rules of the House, a set of rules known as “Reed’s Rules.” The House did not vote on a previous question motion to end debate on this rules package; instead the leaders of the two parties negotiated (what we would now call) an unanimous consent agreement to govern the debate and bring it to a close (Congressional Record, 2/11/1890, 1206-8). And, by then, Reed’s Rulings had already effectively ended House obstruction…at least until Democrats restored it in the next Congress.
Can Senators Reform By Ruling?
YES. In 2014, Sergio Campos and I published an article on how legislators have used parliamentary rulings to limit filibustering, and laying out some options for senators to use if they want to impose reform on a recalcitrant minority. Binder and Smith’s Politics or Principle includes a list of 14 major changes in Senate obstruction (pg. 7), and six of them are precedents. Wawro and Schickler’s Filibuster features excellent research to identify a broader set of reform rulings.
But if you have followed the Senate at all over the last eight years you do not need to keep up on the academic research to know that a simple majority can limit filibustering by precedent because narrow partisan majorities have done it repeatedly:
Nov. 21, 2013: Senate Rule 22’s “three-fifths of the chamber” threshold for cloture now means “simple majority” for all nominations except the Supreme Court.
April 6, 2017: The 2013 ruling extends to Supreme Court nominations
April 3, 2019: post-cloture debate time on most nominations is limited to two hours.
It is not hard to conclude that something which has happened can happen. And if reform-by-ruling can happen and it has happened, senators don’t need a previous question motion to make it happen. Senators have always had the power to determine what their rules mean, so they have always been able to limit or eliminate filibustering if a majority of the Senate is ready to vote for reform.
Burr, the PQ, and the Reform Debate
I was first drawn to this topic by my research interests. I was curious if the House and Senate are different by accident or by design—that is, the accumulated choices of their members—and eventually came down on the “design” side. This is important if we are trying to understand the extent to which rules are stable, and when they will be changed.
But, the Burr slurs are currently in vogue because a lot of Senate critics who would like to see the Senate become a more productive body, and they see this story as a way of delegitimizing the Senate filibuster. However, the rest of the "blame Burr" punch line is that the Senate cannot change because it lacks a PQ motion in its rules. These advocates may not grasp the contradiction between saying “the Senate filibuster only exists due this historical accident” and “the Senate Democrats should enact new precedents to kill the filibuster.” But if a bare majority can end the filibuster now, then this has always been true, and there is no proof that their path to success would be easier if they had a PQ motion.
For advocates of Senate reform, this poses an awkward truth: the Senate filibuster has persisted to this point because lots of senators have supported it. Not all senators all the time, but enough that there are rarely majorities ready to enact reforms opposed by a large minority of the chamber. However, another implication of majority control over the Senate is that senators cannot blame their ineffectiveness on their rules. Today and everyday, senators have the power to make the Senate a more effective and deliberative body , and if the Senate fails to produce positive change, senators have no one to blame but themselves.