Cato the Younger, who inspired the eighteenth-century proponents of a free society who in turn inspired the libertarian Cato Institute, employed the filibuster to slow Julius Caesar’s consolidation of authority over the Rome Senate. Caesar jailed Cato at one point and then thought better of it; the consul released Cato, learned a few legislative tricks of his own and succeeded in circumventing the delaying tactic.
So let’s accept that the filibuster has a history.
Let’s also accept that the history is one of constant evolution that has always erred on the side of constraining rather than empowering the outliers who would use it to impose the will of the minority on the majority.
As Senate Democrats maneuver this week to implement a relatively minor reform of the current filibuster rule—beginning a process that could take weeks, even months—what should we know about Cato’s tool?
1. It All Goes Back to Pirates.
Derived from a Spanish word for pirates ("filibustero," or freebooter), the term "filibuster" was first used in a legislative context to describe those who hijacked the legislative process. Specifically, it refers to the tactic of grabbing control of the schedule for debating and voting on bills—which is traditionally set by the leadership—for the purpose of achieving an end not favored by the majority.
2. Which Foolish Founder Included a Hijacking Provision in the Constitution?
Don’t blame James Madison, or George Mason, or Alexander Hamilton for this one. There is no provision for the filibuster in the US Constitution. Nor were there any filibusters in the first fifty years of the US Senate. It was not until 1841, during the debate on the bill to charter the Second Bank of the United States, that something akin to a filibuster was used. Even then, the tactic was so rarely and gingerly adopted that it has been said that sightings of comets were more common than filibusters in the nineteenth century.
Only in the past decade has the filibuster become a common tactic, but what passes for a filibuster today does not resemble what most Americans think of when they hear the term. Today, senators threaten to filibuster and on the basis of the threat, the Senate majority leader does not schedule a vote until a super-majority, two-fifths of sworn senators (sixty members), are ready to force action. The fake filibuster tactic has become exceptionally common in recent years, as the Senate has adopted a two-track system that allows consideration of controversial legislation to be delayed while other measures advance. The effect has been dramatic. Where in the 1950s, years might go by without a single cloture vote to end debate, more than 130 cloture motions were filed in both the 110th and 111th Congresses.