head to head, face to face : the filibuster is a symbol of passionate opposition, once upon a time actual fighting, today the trials and troubles of debate

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Much talk has arisen concerning a Senate tactic we call “filibuster.” It is a venerable device, about whose beginnings these mid-19th Century observers had these words to say :

FILIBUSTERING is a term lately imported from the Spanish, yet destined, it would seem, to occupy an important place in our vocabulary. In its etymological import it is nearly synonymous with piracy. It is commonly employed, however, to denote an idea peculiar to the modern progress, and which may be defined as the right and practice of private war, or the claim of individuals to engage in foreign hostilities aside from, and even in opposition to the government with which they are in political membership. [Harper’s New Monthly Magazine, January 1853]

The noun in the legislative sense is not in Bartlett (1859) and seems not to have been in use in U.S. legislative writing before 1865 (filibustering in this sense is from 1861). Probably the extension in sense is because obstructionist legislators “pirated” debate or overthrew the usual order of authority. Originally of the senator who led it; the maneuver itself so called by 1893. Not technically restricted to U.S. Senate, but that’s where the strategy works best. [The 1853 use of filibustering by U.S. Rep. Albert G. Brown of Mississippi reported in the Congressional Globe and cited in the OED does not refer to legislative obstruction, but to national policy toward Cuba.]

About these observations I will have more to say later. Right now, I want to express my view that the filibuster at it is practiced is a necessary foundation of minority power during the legislative process. Properly wielded, it forces the majority to negotiate a compromise in which the minority sees some of its amendments incorporated into the bill which the majority wants. Or, in some cases, a filibuster may oppose the bill completely.

Why do we allow such a custom ? We do so because our Constitution, and our political practice, is skeptical of majorities. We see how readily a majority for x may change into opposition to x. We see also that today’s elected majority is tomorrow’s defeated majority, and thus we ask that bills proposed by today’s majority be able to attract enough minority support that when today’s minority becomes tomorrow’s majority, the bill, if enacted, does not get repealed. After all, most of us prefer stability in the law; input from a minority helps us get to there. We all see how in Massachusetts, legislative consensus assures that reforms stick. If everybody has a stake in what is enacted, how can an opposition gain traction ?

Such are the arguments in favor of filibusters. The question then comes, what sort of filibuster make for good legislative days ? I guess that my preference is the same as expressed yesterday by President Biden : a filibustering minority in the Senate must actually stand up and speak –debate the issue — contribute to the discussion. It is not enough merely to threaten a debate. The objector must actually argue his objection.

This is the same position now taken by centrist Senators, Joe Manchin of West Virginia being the foremost. I understand that minority leader McConnell passionately wants no change to current filibuster standards, and he has reason to be stubborn : once you begin to alter the standards, it becomes hard to stop further alteration. I share his worry; yet the majority has rights of brag as well, and it is a majority, however temporary, and presumably advocates laws that a majority of voters support. Although our Constitution is not a majoritarian agreement — far from it — it does grant numbers to the majority, and we should dilute said numbers only when necessary : I say ‘necessary’ because advantage is not enough reason to curtail a majority; something more urgent must be at hand. Thus, necessity.

Scot Lehigh in his excellent column about the filibuster, in today’s Boston Globe, notes that our Constitution already grants a minority important buttress: by way of allocating two Senators to each state regardless of population. This was done expressly at the insistence of small States, who rightly feared being power-swamped by large states had a purely majoritarian legislature been agreed to. Filibuster frosts an additional layer of objection onto said cake, a layer not included in the Constitution and therefore precarious. It arises from the world of fighting opposition — from actual violence — and is that opposition’s formalized symbol. Today it exists at the pleasure of a Senate which sets its own rules every term. Having thus to pass muster every two years, filibuster has to compromise just as its use asks for compromise. I see no reason why the present request, to require actual debate of those who would filibuster, is not a just solution to this particular paradox of governance.

— Mike Freedberg / Here and Sphere