Is the Senate filibuster a "Jim Crow Relic"? No.
Updated: Jul 13, 2021
It is not surprising that Democratic control of the lawmaking process has led to renewed calls to reform the Senate filibuster, which grants Republicans a veto over most of their agenda. What is surprising is that the progressive argument has emphasized inaccurate claims that the filibuster was an “accident” and that the filibuster has historically been a relic of “Jim Crow”—that is, that the Senate filibuster was designed by and for protectors of racial inequality in the South. In this post, I critique one strand of this argument—that the filibuster was “designed” by southern racists—and find that legislators from across the country contributed to the development of Congressional obstruction.
The “Filibuster as Institutionalized Racism” Argument
Let us begin by understanding the historical argument against the filibuster. President Barack Obama hinted at the argument last July when he called the Senate filibuster a “Jim Crow relic,” but the argument is fleshed out in Adam Jentleson’s Kill Switch. Jentleson’s argument has two prongs:
Two southern senators—John C. Calhoun and Richard Russell—were primarily responsible for the institutionalization of the Senate filibuster. And they were very racist.
Until the modern era, filibusters were primarily used to target civil rights bills, and from 1877 to 1964 only civil rights bills were blocked by filibusters. (I shall address this in a later post)
The inference Jentleson draws is that the filibuster itself is a racist institution, so eliminating it would help cleanse the Senate of its reprehensible past.
In Jentleson’s account, Calhoun (S.C.) does three things to make filibustering possible in the Senate. First, his Disquisition on Government provides an intellectual rationale for minority vetoes of majority actions, especially majority parties. Of course, this text does not mention filibustering, and it seems more likely Calhoun is thinking of state nullification of federal laws and possibly the norm of equal numbers of slave and free states. Second, Calhoun (as Vice President in the 1820s) did not intervene to stop John Randolph (Anti-Adams, VA) from making long, insulting speeches. (The Senate subsequently enacted a rule clarifying that the presiding officer can and should object to insulting speeches). And, third, Calhoun participated in filibusters in 1841 and 1848.
As for Richard Russell (D-GA), Jentleson attributes two innovations to him. First, he encouraged southern senators to avoid blatantly racist language while filibustering. And, second, he drove a hard bargain during negotiations of a new cloture rule in the Senate in 1949.
And that’s it. Jentleson devotes much more attention to showing that they were really racist, which is 100% true, than to explaining how these two racists were solely or primarily responsible for the Senate filibuster, notwithstanding the views and efforts of hundreds of other senators over the last two centuries.
This narrative commits two fallacies. First, the critical “variable” in this analysis, region, doesn’t vary. Jentleson does not compare the filibustering innovations of (two) southerners to those of non-southerners, nor ask whether other southerners were opposed to obstruction. Second, it only discusses filibustering in the Senate, while ignoring the history of obstruction in the U.S. House of Representatives. The House was the scene for most of the filibustering of the first century of Congressional history, so the "lower chamber" provides an excellent test of the thesis that southerners developed obstruction to protect slavery and block civil rights legislation.
WHO WERE THE OBSTRUCTION ENTREPRENEURS?
First, it seems weird to ask who “developed” the filibuster. Like teenage rebellion and fried dough with sugar, obstruction is so ubiquitous that crediting or blaming one person is somewhat arbitrary. My book on the topic, Filibustering, defines filibustering as the strategic use of delay in a legislative setting, and not limited to a specific method or legislative chamber. Wherever you see a group of people trying to make a decision, you are likely to see obstruction sooner or later. And, as Bill Scher points out, the earliest recorded filibusters occurred in the Roman Senate. There was also quorum-breaking in the Continental Congress, and in the Pennsylvania Assembly as it was debating a state convention to ratify the U.S. Constitution. No member of the U.S. Congress "created" the filibuster, because it already existed.
Let us start fresh, then, to identify legislators who contributed to the development of Congressional filibustering, paying special attention to legislators who did something new.
Barent Gardenier, U.S. House
In my systematic search for Congressional obstruction, the first six filibusters appear in the U.S. House from 1807 to 1811. One was related to a contested election case, while the other five were related to foreign trade & relations with Great Britain. House members used all three major obstruction tactics: forcing procedural votes to waste time, refusing to vote or remaining absent to deprive the chamber of a quorum, and making long speeches.
The last and most intense filibuster occurred in early 1811, during the last days of the 11th Congress, against a bill to ban all British imports. House members made eight dilatory motions and six quorum-breaking efforts. John Randolph (VA) was one of the obstructionists, and was called out for it by another Virginian, John Eppes. Randolph, “unbalanced by liquor,” called him a liar and they left the chamber to arrange a duel.* In addition, long speeches by Barent Gardenier (Federalist – NY) motivated the first major “nuclear option” in Congressional history. In the early morning hours of February 28, 1811, a (Jeffersonian) Republican from Virginia, Thomas Gholson, moved the “previous question” motion, which traditionally meant a test of whether a discussion should continue. The motion passed, so Gardenier got up to resume, but Peter Porter (J. Rep – NY) made a point of order that the previous question motion should have the opposite effect: ending all debate. Gardenier, undeterred, got up to speak on the point of order, at which point a second point of order was made that no debate is allowed on points of order. This argument was sustained by a large majority—primarily from the South—and the filibuster ended.
So the first famous obstructionist was from New York, not the South. And the coalition that sought to shut him down included a large number of southerners.
The Ex-President from Braintree
After the 1811 fight, filibustering died down in Congress until the 1830s. My next post will discuss the early Senate filibusters during this period, but we do observe a major innovation in Congressional filibustering during the 1830s: the right to not vote. This informal “right” facilitated decades of quorum-breaking in both chambers, and did not end in the House until the 1890s. And who fought for this right? John Quincy Adams, former President and Anti-Mason from Massachusetts.
On July 11, 1832, Adams refused to vote on a censure of William Stanbery. At the time, another member pointed out that this could lead to House members refusing to vote en masse, but nevertheless Adams persisted. Indeed, he subsequently noted in his diary that he encouraged non-voting as a means of depriving the chamber of a quorum and thus bringing legislative action to a halt.** This was one of the major developments in 19th century filibustering and, to emphasize the painfully obvious, Adams was not a southerner.
The examples of Gardenier and Adams also serve to establish a broader point: the basic tactics of Congressional obstruction—quorum-breaking, dilatory votes, and long speeches—were very familiar to members of Congress before John Calhoun entered the Senate in late 1832.
“Fighting Bob” La Follette of Wisconsin and Progressive Filibusters
While the methods of obstruction were well-established early on, it is worth highlighting a powerful justification for filibustering that emerged in the early 20th century: Progressive opposition to party organizations and business interests. I use “progressive” not as a synonym for liberal, but as consistent with the views of the Progressive movement of the early 20th century. In particular, two Progressive themes were distrust of party “machines” and other strong party organizations that had inordinate influence on legislators, and distrust of corporations and super-wealthy industrial leaders. A common rationale for Senate filibusters in the early 20th century, accordingly, was that a brave tribune of the public will was fighting against party bosses and their fat-cat overlords.
One such filibuster was led by Robert “Fighting Bob” La Follette (R-WI). La Follette and his colleagues opposed a bill proposed by Senate Finance Committee chair Nelson Aldrich (R-RI), one of the business-friendly GOP leaders of the chamber. Aldrich’s bill—a precursor to the Federal Reserve—allowed banking cooperatives to issue emergency currency as needed, which progressives saw as a boon to Wall Street banks. La Follette filibustered for 18 hours straight (a record at the time). He frequently used quorum calls to give himself a break until Aldrich et al imposed a new precedent that senators cannot call for a quorum unless some other business (not including debate) has occurred since the last quorum call. La Follette eventually passed the baton to his fellow obstructionists. The filibuster was finally broken when Thomas Gore (D-OK), who was blind, finished his speech when no other obstructionist was ready to speak, and Aldrich seized the opening to start the roll call vote.***
La Follette and his allies may have lost the battle, but their effort established La Follette as a leading “insurgent” against conservative Republican leaders. The effort also highlighted a narrative for a “legitimate” filibuster: the honest minority may use obstruction to thwart the corrupt goals of party bosses and moneyed interests. Another such case was George Norris’s (R-NE) 1925 effort to block Henry Ford’s takeover of government nitrate and hydroelectric facilities at Muscle Shoals, Alabama. Norris saw this legislation as a transfer of public resources to a rich investor for private gain, and kept the bill from passing.
This anti-party attitude also affected senators’ procedural choices. In my research on the adoption of the Senate cloture rule in 1917 and subsequent efforts to adopt simple majority cloture, I found that senators were concerned that, in practice, “majority rule” would mean “the policy adopted by the majority of the majority party” so they preferred a supermajority cloture rule as a defense against the power of party discipline.
How widespread was this narrative? When Jim Capra made Mr. Smith Goes to Washington in 1939, his filibustering senator was not a southerner blocking a civil rights bill. Instead, the movie portrays an upstart senator from a western state filibustering against the corrupt scheme of the party machine in his home state. This plot line fit into a well-established narrative of who filibustered in the Senate, and why they did it.
The Civil Rights Era, 1940-65
The period which comes closest to matching Jentleson’s narrative is the period from 1940 to 1965. As I will discuss in a later post, there were several high-profile filibusters against civil rights bills during this era, but there continued to be filibusters on other issues as well. In part, the relative prevalence of civil rights filibusters was due to a strategic decision by progressive organizations that they would seek to abolish the filibuster, and thus they urged their Senate allies to abstain from filibusters to help discredit the practice.
Kill Switch personifies the southern blockade of civil rights legislation with Richard Russell (D-GA), the leader of the Southern Caucus. It does not mention one of Russell’s innovations: the assignment of senators to rotating two-person shifts to conduct a filibuster. While previous talking filibusters had featured some degree of coordination, Russell’s tactics were especially well organized and effective.
On the other hand, the text overstates Russell’s influence on the Senate’s cloture rule, especially on the 1949 cloture rule change (pages 80-84). From 1949 to 1975, Senate liberals provoked votes on rulings from the chair that, they believed, would help them achieve some form of “nuclear option” reform. Until 1975, they lost all these votes—there simply was no majority willing to make procedural reforms by simple majority vote.
The Senate did not adopt a restrictive cloture rule in 1949 because Russell was especially persuasive or bullying. He had bargaining leverage because, on March 11, 1949, the reformers lost a clear vote on whether the cloture rule applied to motions to proceed to legislation. The presiding officer of the Senate had ruled that cloture could be invoked on a motion to proceed, but the Senate rejected this ruling by a vote of 41-46. The reform coalition then had to accept a humiliating compromise because they clearly lacked the votes to make reforms on their own terms.
1970s Filibuster Innovations: Allen, Abourezk, and Metzenbaum
Three senators from the 1970s deserve mention for the tactics they used to obstruct.
First, James Allen (D-AL) was one of many southern conservative opponent of civil rights. He deserves special note, however, for his one-man effort against the 1975 cloture reform proposal. He came to the U.S. Senate after presiding over the Alabama Senate as lieutenant governor, and he applied this background in parliamentary procedures to manufacture a series of votes on procedural questions.
Here is just one example: on Feb. 24, 1975, the Senate voted on whether to table a revote on Allen’s appeal from the ruling of the chair against Allen’s point of order against his own motion to take up a rules change. That is, Allen make a motion, raised a point of order against himself, moved to table his own appeal (which was voted on), then moved to consider this vote, and moved to table his own motion to reconsider. Allen had real skill at generating such votes, and they could be used to tie up the Senate for days.
Once the cloture rule was amended to require 3/5 of all senators to limit debate, Allen exploited a loophole in the rule to offer unlimited amendments after cloture was invoked. Since 1917, the cloture rule limited “debate” to 100 hours (now 30) once cloture was approved, and prevented nongermane amendments. What it did not do was limit the number of germane amendments (that is, related to the bill on the floor) that senators could call up. Senators first attacked this vulnerability in 1922 on a trade bill (see Filibustering, 156), then during the 1964 Civil Rights Act contest (Filibustering, 170-71). Allen revived the tactic to stall a bill allowing judges to award attorney fees to winning plaintiffs in civil rights cases. The bill passed, but Allen wasted valuable time at the end of the 94th Congress.
At the start of the 95th Congress, new majority leader Robert Byrd (D-WV) proposed rules changes to limit post-cloture obstruction, but Republicans objected and Byrd backed off. Months later, however, James Abourezk (D-SD) and Howard Metzenbaum (D-OH) used the same tactics to block a bill deregulating natural gas prices. With the assistance of Vice President Walter Mondale, Byrd used extreme measures to call up and dispose of their amendments without a vote.
This sequence illustrates the importance of considering a broad set of examples. Allen fits the “racist Southerner obstructionist” narrative, but senators from the West and Midwest used the same post-cloture tactics when it suited their goals. And it was a Southerner with, it must be said, a past affiliation with the KKK, who led the effort to restrict filibustering in 1977 and 1979.
Finally, because the historical portions of Kill Switch focuses on personalities, it fails to explain how and why the Senate became dependent on supermajorities to invoke cloture on silent filibusters. This was one of the main points of Filibustering: in the 20th century Senate, waiting out a “talking filibuster” became too costly a strategy for majorities because a) the time of the chamber became more valuable due to increasing workload, and b) the time of senators became more valuable as the other options for their time (travel, fundraising) increased. Starting in 1961, senators abandoned patience as a strategy and used cloture votes as an alternative…not because one senator willed it, but because the context in which senators worked had changed.
* The Randolph anecdote is from Robert Luce, Legislative Procedure, 285 (1922; Boston: Houghton Mifflin)
** On Adams, see De Alva Alexander’s History and Procedure of the House of Representatives, 158-59 (1916; Boston: Houghton Mifflin); Luce, Legislative Procedure, 371-72.
*** This famous episode is mentioned in several works, but I especially recommend Franklin Burdette, Filibustering in the Senate, 83-91 (1940; Princeton University Press).