Ahoy!

Photographer: Aaron P. Bernstein/Getty Images

The Modern Pirates of the Senate

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
Read More.
a | A

The reflexive threat by Senate Democrats to filibuster the nomination of Judge Neil Gorsuch to the U.S. Supreme Court has been followed, predictably, by President Donald Trump’s impulsive advice that the Republican majority “go nuclear” and get rid of the ability of 41 senators to block action on appointments to the high court. Here some forgotten 19th-century history may be instructive.

Although no complete compendium exists, the practice of the filibuster is usually traced back to 1790, when Southern senators refused to end debate on a resolution that would have established the nation’s capital in Philadelphia. But what about the word? How did we come to use “filibuster” to refer to the notion that Senate action often requires a 60-vote supermajority?

QuickTake Filibusters

Everyone agrees that by the late 19th century, the word had taken on its modern meaning. In 1893, for example, when the Senate Republican caucus decided “that there should be no dilatory tactics” against any legislation sponsored by the Democrats, the New York Times headlined its article “Republicans Will Not Filibuster.”

But where did this usage come from?

We know a lot about the origin of the word itself. The Oxford English Dictionary attests the use of “flibutors” or “fleebooters” as early as 1591, to mean “freebooters,” robbers who took plunder.  By the 17th century, the term “filibusters” came to refer to buccaneers who raided Spanish colonies, especially in the Caribbean. After the French explorer and privateer Pierre Le Moyne d’Iberville conquered Nevis in 1706 during the War of Spanish Succession, he imposed a peace treaty under which the island agreed to send 1,400 slaves to Martinique, and were promised in return “that there shall be no insult or hindrance committed by filibusters after the departure of the fleet.”

By the early 19th century, the term was being used in American practice to refer specifically to those who made private expeditions to other countries in the hope of overthrowing their governments. A “filibuster” was an individual who participated in such an adventure. But how did the word come into politics?

Like much else -- through the argument over slavery.

Credit is usually awarded to Representative Albert Gallatin Brown of Mississippi, who during House debate over Cuba in January 1853 said: “I saw my friend standing on the other side of the House filibustering, as I thought, against the United States.” Moments earlier, Representative Abraham Venable, a Democrat from North Carolina, had argued that if the U.S. interfered in Cuba’s revolution against Spain, its forces would be “buccaneers.” Brown was simply continuing the metaphor, contending that Venable was acting against the best interest of the U.S. -- the extension of slavery -- and was in that sense “filibustering.” Later that same year, the New York Tribune wrote that Senator Lewis Cass had “made a silly filibustering speech” -- meaning “without merit or force in idea or expression.”

But what we see in such cases is merely the appropriation of a colorful term to refer to political positions that one dislikes. That is a different matter from describing a political process that delays legislation. Many sources trace that usage to the late 1880s. They’re wrong.

As early as July 1868, the Hartford Courant had this to say about parliamentary maneuvering in the Connecticut legislature: “Democrats showed a lively disposition to filibuster on the references of the bills for the reorganization of the police establishment of New Haven.” The filibustering in this case involved refusing to be present for the vote, in the hope of denying the majority a quorum.

That same year, Ohio Republican John Bingham introduced a resolution calling upon the House of Representatives to create a guard room in the Capitol basement for the imprisonment of Charles Woolley, a lawyer who was refusing to answer questions about supposed corruption in Andrew Johnson’s impeachment trial. “To this the Democrats objected,” reported the Baltimore Sun, “and commenced to filibuster by dilatory motions.”

In 1875, the Chicago Tribune reported a scene that is colorful, if indeed it happened. The House of Representatives was taking up a bill to license the sale of liquor. “At once the Democrats began to filibuster.” When they were unsuccessful, the Democratic leader shouted “Run!” And, reports the Tribune, they did, scurrying from the chamber in an effort to deny the House a quorum.

In the wake of the disputed 1880 election, Republicans in the Senate threatened to count the electoral votes without the participation of the House. The Washington Post condemned this position as “a declaration that the minority will filibuster” rather than allow the Congress as a whole to work out a process for tabulation.

But the term filibuster was not used to refer only to abuses of the process by the minority. In 1872, for instance, Senator Roscoe Conkling of New York offered the first clear definition of filibuster in its modern sense: “factious action by a minority to prevent the majority from proceeding with business.” What’s striking is that he was responding to charges that the majority was filibustering by bringing up new bills after an all-night session when the parties had previously agreed that the bills would not be considered.

In short, the 19th-century understanding was that a filibuster was any disruption of the ordinary legislative process -- not just our modern understanding, in which a minority refuses to yield the floor. Writers who contend that the word properly means that the legislature has been hijacked are correct, but the same derisive term should be applied to any effort to flout the rules of fair play in order to prevail. In other words, a rampaging majority as much as an unruly minority should be adjudged guilty of filibustering.

Perhaps Senator Mitch McConnell’s refusal to allow a vote on President Barack Obama’s nomination of Merrick Garland to the Supreme Court might be called filibustering in this sense, but so might the use of the reconciliation process to pass the Affordable Care Act in 2010 by a simple majority. Or restricting the ability of the Senate minority to offer amendments.

The refusal of the minority to allow a vote may be a bad thing in a legislature. But it is not uniquely bad. Every buccaneering raid against the legislative process should be treated with the same contempt. If Democrats are to be criticized as filibusterers for blocking a vote to the Gorsuch nomination, we should use the same word for Republicans if they respond by blowing up the rules.

  1. Actually the word appears in this usage in a collection of John Dryden’s works published in 1580.

  2. The point was that the outgoing House had a Democratic majority; the incoming House, not yet seated, was solidly Republican.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L. Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net