The legislative debacle by which ObamaCare was passed showed what happens when there is not a functioning filibuster. The 2008 elections gave the legislative and executive branches of government to the same party with sufficient margins in the House and Senate that the minority party – the Republicans – could have taken the next two years off and gone fishing.

The Senate Democrats had the votes to overcome any Republican filibuster until the death of Ted Kennedy. His Republican replacement, Scott Brown, forced Senate Majority Leader Harry Reid to resort to procedural, if not illegal, chicanery to complete the conferencing required to reconcile the House and Senate versions and pass it into law.

As I’ve noted in previous blogs, ObamaCare was illegally birthed in the Senate in violation of the Origination Clause of the US Constitution. By disemboweling an unrelated House bill for military housing and stuffing the carcass with 2,700 pages of bureaucratic gibberish, the Democrats hijacked the private sector of the US healthcare system. No meaningful Senate debate was allowed among Senate members. No time was allowed for Republicans to inform the American public about the pending law. Reid limited the amendment process in order to rush the bill, which most Senators hadn’t read, to a vote failing to garner a single Republican.

This is what life without a filibuster looks like.

The Senate and the House operate very differently to produce legislation. The House “rocket docket” passes bills very quickly with a simple majority vote. Most House bills that pass have majority party defections. No matter. The majority needs half of the 435 House votes plus one. Therefore, little debate or consensus-building for legislation occurs. If the Speaker allows Representatives to speak prior to a vote, he may limit appeals to influence the pending vote to 30 seconds or a minute.

Unlike the House, things move slowly in the Senate. The minority party may stall a vote by a filibuster, which requires 60 votes to cut off. This compels issues and different points of view to be debated, compromises must be struck, amendments are often incorporated which reshape the original bill, and this continues until 60 votes can be rounded up to overrule the holdouts. Deliberation requires majority leaders to prevent losses among their caucus while minority party votes are wooed and accommodated – except in the 111th Congress. From the 2009 swearing in of new Senators until the February 2010 swearing in of Scott Brown, 60 Senators conducted the business of the Senate. Forty were sidelined. ObamaCare and Dodd-Frank were among the leading examples of the abominable legislation that resulted. This is what happens without the right to filibuster. Whether the left or the right of the political spectrum is the minority the filibuster puts the brakes on extremism.

This past week we heard threats from Reid about resorting to the “nuclear option.” This ominously-sounding parliamentary procedure would have changed Senate rules by simple majority in violation of existing rules. Had this happened as Reid wished, it would have allowed presidential nominees for executive branch positions to have been approved by a simple majority. The rules for approving judicial nominees and legislation would have continued to be subject to filibuster and could only be cut off by the supermajority rule of 60 votes.

A few years back, however, Minority Leader Reid sounded quite different about the filibuster rules change. George Bush was then in the White House and the Republicans controlled the House and Senate, albeit not by filibuster-proof margins in the Senate. The Democrats frequently used the filibuster. Majority Leader Bill Frist grew as tired of the deadlock as Reid is today and threatened the “nuclear option” – a term coined by former Republican Majority Leader Trent Lott – to change the Senate’s rules by simple majority vote in which the Republicans would have prevailed. Democrats became apoplectic.

The filibuster is the last check we have against the abuse of power in Washington. Republicans are in power today, Democrats tomorrow. A simple majority … should not be able to come in here and change willy-nilly a rule of the Senate.

Well, that was Reid vintage 2005. Harry Reid vintage 2013 should take his own advice. Bullying an agenda through the Senate does not produce good legislation, does not properly vet candidates for executive positions, and does not deliberate the suitability of a judge for a lifetime position.

Several years ago, Common Cause joined four House Representatives and three illegal aliens in Common Cause v. Biden, a lawsuit in federal court challenging the constitutionality of the filibuster. Common Cause claimed the filibuster was “inconsistent with the principle of majority rule.” The four House members claimed the Senate filibuster rule nullified their votes on bills. The illegals claimed they were denied a path to citizenship under the DREAM Act because the Senate couldn’t cut off the filibuster. The judge called the suit frivolous and threw it out. None of the plaintiffs had standing in the case, and Judge Sullivan rightly concluded that…

… to intrude into this area would offend the separation of powers on which the Constitution rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings … the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.

By what logic would the Founders have created a bicameral legislature having two nearly identical houses? In its zeal to advance a political agenda, Common Cause and the individual plaintiffs failed to comprehend that the Founders never intended for the Senate to be a majoritarian body like the House. It is a very different institution. There are two Senators from each state regardless of state size or population, unlike the House which is apportioned by population. Originally, Senators were elected by state legislators (and I think still should be) whereas House members are popularly elected. In each new Congress, the Senate is a continuing body – two-thirds of it remains intact with every election and its rules carry forward. The entire House is replaced every two years and its rules are adopted for each new Congress even though some may carry forward by choice. The Senate rules protect minority party rights to participate in shaping legislation and other matters. House rules do not.

As Judge Sullivan aptly lectured the plaintiffs above, Article I, Section 5 of the Constitution states that “each house may determine the rules of its proceedings.” This means the Senate makes rules governing debate and the House does likewise.

In the first Congress of 1789, each chamber therefore created its own rules of order. It happened that both employed a parliamentary rule that harked back to the English parliament known as “the previous question motion.” This was equivalent to saying, “shall we move to a vote?” or “shall the question by now put?” Nay votes postponed a vote; yea called for a vote. This was so in both House and Senate. It was not a simple majority cloture vote. A nay vote on “the previous question motion” postponed a vote and the legislative body moved on to other business. A yea vote continued debate. In 1811 House rules were changed so that a yea vote immediately ended debate and brought the question to a vote. This is how the House adopted simple majority cloture.

The early Senate sessions continued the previous question motion to end debate and move on without voting until March 1805 when it was dropped from Senate rules. Erroneous folklore has been concocted by those seeking to overturn the Senate filibuster, saying that it was created accidentally by Aaron Burr, Jefferson’s departing Vice President. No it wasn’t. The word “filibuster” wasn’t even used until the 1850s – a decade and a half after Burr died. Burr recommended dropping “the previous question motion” because it duplicated the motion for indefinite postponement and because “the previous question motion” had only been used once in the Senate’s history.

The “filibuster by accident” fairy tale originates from the diary of John Quincy Adams, which includes the following account of Burr’s speech to the Senate after his lethal duel with Alexander Hamilton ended his political career:

He [Burr] mentioned one or two of the rules which appeared to him to need a revisal, and recommended the abolition of that respecting the previous question, which he said had in the four years been only once taken, and that upon an amendment. That was proof that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement. (Memoirs of John Quincy Adams, edited by Charles Francis Adams, vol. I, p. 365)

Dropping the “previous question motion” eliminated a way to end debate. That was not problematic in those days because the gentlemanly thing to do was to allow a Senator to speak before a vote, even if winning the support of fellow Senators was futile, at least his position would be recorded in the Senate log. Such was the dignity of early debate and deliberation.

It would be 1837, the year after Burr’s death before a minority block of Whig Senators engaged in an extended debate to prevent a resolution of censure against Andrew Jackson from being deleted by his supporters. It’s unlikely that the Whig minority thought of themselves as engaging in a filibuster.

Seven years would pass before a similar debate tactic was used in 1841 to block the charter of the Second Bank of the United States whose sponsor was Kentucky Senator Henry Clay. When Clay tried to “move the previous question” and end debate by simple majority vote, Alabama Senator William King accused Clay (the two had threatened to duel each other several times) of trying to gag free debate and told Clay he “may make his arrangements at his boarding house for the winter.” John C. Calhoun of South Carolina rose in high dungeon to accuse Clay of a “palpable attempt to infringe the right of speech” and promised to defend the minority’s “undoubted right to question, discuss, and examine those measures which they believe in their hearts are inimical to the best interests of the country.” Missouri Senator Thomas Hart Benton reprimanded Clay for attempting to stifle the Senate’s right to unlimited debate. Thoroughly scolded by his colleagues, Clay backed down.

The term filibuster derives through Spanish to a Dutch word which meant “privateer” or “pirate.” It entered the legislative lexicon when Representative Albert G. Brown in 1853, referred to a speech by Representative Abraham Venable against “filibustering” intervention in Cuba – i.e. the practice of overthrowing Central American governments by private US citizens. As political-speak filibuster was used in 1889 as a pejorative for an obstructionist of the political process. It probably was understood to characterize the overthrow of legislative routine and pirate control.

As more states entered the Union and the volume of Senate business grew, so did the practice of filibustering. Senator Robert Byrd, the longest serving member of the Senate and an authority on its history, noted the following in his book The Senate, 1789–1989:

An effort to reinstitute the “previous question” on March 19, 1873 failed by a vote of 25 to 30. Between 1884 and 1890, fifteen different resolutions were offered to amend the rules regarding limitations of debate, all of which failed of adoption.

The point I’m attempting to demonstrate is that the early history of the Senate makes clear that the filibuster was not an accident of history, as its opponents try to characterize it. The filibuster was a creation of early Senate rules. Later Senators had many opportunities to rein in or eliminate the filibuster and resisted it.

In 1917 Woodrow Wilson prevailed upon the Senate to establish a cloture rule to end debate. Senate Rule XXII was enacted which stated that debate may be terminated by the votes of two-thirds of the Senators present and voting. A Senate quorum is 51 Senators, so as few as 34 could cut off a filibuster. On important legislation, however, it is likely that more will be present and voting on the floor, meaning more will be needed to close debate. Two years after Senate Rule XXII was established, it was used to cut off debate filibustering against the Treaty of Versailles. In 1975 the Senate modified the cloture requirement, lowering the number of senators needed to end debate to 3/5ths of those “duly chosen and sworn,” which would be 60 Senators normally.

Most of us have seen the 1939 Frank Capra film starring Jimmy Stewart as Senator Jefferson Smith in Mr. Smith Goes to Washington. Stewart’s character is framed in a land scam and engages in a 24-hour filibuster to defend his innocence. In the 1930s Senator Huey P. Long used filibusters to advance his liberal agenda against bills he believed favored the rich over the poor. Reading Shakespeare and cooking recipes he once held the floor for 15 hours. Senator Strom Thurmond holds the record for the longest filibuster – 24 hours and 18 minutes – to prevent the Civil Rights Act of 1957 from passage.

Few of these kinds of filibusters happen today, however. Just the threat of filibuster produces the same result. In order to prevent filibusters or their threat from bringing the business of the Senate to a halt, Democrat Majority Leader Mike Mansfield in the 1970s implemented a multi-track system for legislation so that bills threatened with a filibuster could be sidetracked while other bills made their way through the Senate.

Taking into account that the filibuster empowers the minority in the Senate, it is remarkable to hear Republican Speaker of the House, John Boehner (R-OH), whine that the Republicans hold only one-half of one-third of the the Congress and White House legislative process. He obvious doesn’t understand the power of the filibuster in the Senate.

Notwithstanding the arguments of its opponents, the Senate should retain the filibuster. In next week’s blog I’ll give the reasons why I believe that.