The Weekly Screed (#654)

No, Senator,
this wasn’t Jefferson’s idea
by David Benjamin

PARIS — Thomas Jefferson might have written the rules of the U. S. Senate, but I tend to doubt it. Jefferson was a pretty good writer and, according to Constitutional scholar Sarah A. Binder, a senior fellow at the Brookings Institution, the original Senate rules were “a mess,” disorganized and full of redundancies.

However, in one of the most bandied quotes after this week’s decision by Senate Democrats to eliminate the filibuster for most Presidential appointments, it’s evident that Sen. Lamar Alexander (R-Tenn.) thinks Jefferson followed up his draft of the elegant and succinct Declaration of Independence by scribbling the turgid chaos of the Senate rulebook. Lamenting the Democrats’ filibusticide, Alexander said, “This is the most important and most dangerous restructuring of Senate rules since Thomas Jefferson wrote them at the beginning of our country.”

The clear implication of Alexander’s towering overstatement is that a) Jefferson wrote the Senate’s rules and b) he included the filibuster.

Not so, Lamar. Ms. Binder, who actually looked up the original rules, found no filibuster. In testimony before the Senate in 2010, she noted that the rules of the House and Senate were roughly identical at the turn of the 19th century. Both houses of Congress could “move the previous question” — end debate and proceed to a decision — by a simple majority vote. Binder explained, quite explicitly, that the Constitution doesn’t mention, nor even hint, that it might be OK for an individual senator to block a bill by requiring a supermajority vote to end debate.

Binder’s most entertaining revelation — which every senator, including Lamar Alexander, should remember, because her testimony was only three years ago — was that the filibuster was probably created by accident in 1805, by Aaron Burr, just after he was indicted for killing Alexander Hamilton in a duel. Burr was presiding over the Senate then. He complained that the rules were overwritten, repetitive and cumbersome. So (explained Ms. Binder of Brookings), Burr proceeded to slash away rather randomly at the rules, inadvertently removing the fairly important power of a simple majority to “move the previous question.”

Hence, the filibuster, more a sin of omission than commission, just sort of happened. It sat there in the rules, little noticed and unused, ‘til 1837. Predictably, the issue that brought it to life was trivial.

According to an article by Martin B. Gold and his whimsically named sidekick, Dimple Gupta, in the Harvard Journal of Law & Public Policy, the very first filibuster was a response to the Senate’s censure of President Andrew Jackson, in 1834, for sneaking petty cash out of the Bank of the United States. The pro-Jackson guys in the Senate wanted to repeal the censure vote and burnish Jackson’s presidential legacy. By 1837, they had the votes they needed.

The only way for the anti-Jackson minority to prevent repeal of the censure was to talk a blue streak. Which they did. In response, according to Gold and Gupta, “… Jackson’s supporters prepared for a long night, ‘fortif[ying] themselves with an ample supply, ready in a nearby committee room, of cold hams, turkeys, beef, pickles, wines, and cups of hot coffee.’…”

In the end, the first filibuster petered out early, the pro-Jacks won 24-19, and the Senate floor emptied in record time. This all happened, by the way, 11 years after the death of Thomas Jefferson, who (notwithstanding Sen. Lamar’s misty recollections to the contrary) never had this sort of senatorial high-jinks in mind.

In the latest filibuster battle, I should note that Lamar Alexander wasn’t alone in misreading history. In the Washington Post, Chris Cillizza and Sean Sullivan, the two usually fastidious political geeks who write “The Fix,” stated flatly that “The Senate changed its rules on filibusters for the first time in its history.”

Whoa! Not even close.

OK, we already know, thanks to Sarah Binder, that the Senate (or Aaron Burr, in a moment of pre-murder trial distraction) invented the filibuster rule by accident in 1805. THAT was the first time in history that the Senate changed its rules on the filibuster. But not the last. Afterwards, senators continued dicking around with the unfortunate concept of debate paralysis — in 1837 and 1841, in 1917 (when a two-thirds vote for “cloture” was established), in 1948-49, 1959, 1975 and 1979 (when cloture was reduced to 60 votes). That’s at least nine times, Chris.

Oddly, the most famous filibuster in history (overshadowing even Strom Thurmond’s despicable Dixiecrat rant in 1957) didn’t occur on the Senate floor, but in Hollywood. The heroic image of the filibuster was fixed forever in the American psyche by Jimmy Stewart’s 24-hour philippic, against graft and corruption, before a fictional U.S. Senate in Frank Capra’s Mr. Smith Goes to Washington.

If you watch the film, you might be shocked to note that Jefferson Smith, unlike today’s right-wing filibustiers, was not raging against government, trying to de-fund food stamps and deport farm workers. The “deficiency bill” that Jeff Smith blocks in the movie is a 55-gallon tax-and-spend pork barrel, beloved by both parties. Jeff Smith is blithely in favor of pumping taxpayers’ money into public works and free lunch. But the young idealist has to resort to extremes — the filibuster — when he learns that an evil political Machine, devoted to enriching its corporate allies, is twisting the bill to nefarious ends, slicing off bacon otherwise intended for building boys camps and funding jobs for the unemployed.

Jefferson Smith wins his battle, exalts the filibuster and shames Senator Paine (Frank Capra’s version of Mitch McConnell) into trying to shoot himself. Jeff smashes the Machine, foils the greedy capitalists and gets government to intervene on behalf of the poor, the sick., the jobless and the bridges of Willet Creek

Clearly, if we want to film a believable 21st-century version of Mr. Smith, we’re going to have to fix that ending.