2017 Letter From 61 Senators In Support of Keeping Filibuster

The Honorable Mitch McConnell The Honorable Charles E. Schumer
Majority Leader Democratic Leader
United States Senate United States Senate
Washington, DC 20510 Washington, DC 20510

Dear Majority Leader McConnell and Democratic Leader Schumer:

We are writing to urge you to support our efforts to preserve existing rules, practices, and traditions as they pertain to the right of Members to engage in extended debate on legislation before the United States Senate. Senators have expressed a variety of opinions about the appropriateness of limiting debate when we are considering judicial and executive branch nominations. Regardless of our past disagreements on that issue, we are united in our determination to preserve the ability of Members to engage in extended debate when bills are on the Senate floor.

We are mindful of the unique role the Senate plays in the legislative process, and we are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body. Therefore, we are asking you to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.

Sincerely,

Senators Collins and Coons’ letter was signed by Senators Orrin Hatch (R-UT), Joe Manchin (D-WV), Claire McCaskill (D-MO), John McCain (R-AZ), Lisa Murkowski (R-AK), Patrick Leahy (D-VT), Roger Wicker (R-MS), Lindsey Graham (R-SC), Luther Strange (R-AL), Richard Burr (R-NC), Angus King (I-ME), Mark Warner (D-VA), Michael Bennet (D-CO), Jerry Moran (R-KS), Amy Klobuchar (D-MN), Roy Blunt (R-MO), Bob Casey (D-PA), Marco Rubio (R-FL), Martin Heinrich (D-NM), Jeanne Shaheen (D-NH), John Boozman (R-AR), Thom Tillis (R-NC), Sherrod Brown (D-OH), Dianne Feinstein (D-CA), Shelley Moore Capito (R-WV), John Thune (R-SD), Kirsten Gillibrand (D-NY), Bill Cassidy (R-LA), Brian Schatz (D-HI), Heidi Heitkamp (D-ND), Michael Enzi (R-WY), Jeff Flake (R-AZ), Dean Heller (R-NV), Chuck Grassley (R-IA), Cory Booker (D-NJ), Maria Cantwell (D-WA), Mazie Hirono (D-HI), Rob Portman (R-OH), Lamar Alexander (R-TN), John Kennedy (R-LA), Thad Cochran (R-MS), Joe Donnelly (D-IN), Jon Tester (D-MT), Ben Sasse (R-NE), Thomas Carper (D-DE), Kamala Harris (D-CA), Todd Young (R-IN), Pat Roberts (R-KS), Maggie Hassan (D-NH), Bill Nelson (D-FL), Tammy Duckworth (D-IL), Johnny Isakson (R-GA), Tim Kaine (D-VA), Jack Reed (D-RI), Ed Markey (D-MA), Mike Lee (R-UT), Debbie Stabenow (D-MI), Sheldon Whitehouse (D-RI), and Bob Menendez (D-NJ).

How does the Senate filibuster work?

There is a legend of uncertain veracity that says George Washington and Thomas Jefferson came to agree that the Senate should serve as a “saucer” to the House’s “tea cup” — a vessel for cooling the hottest passions emanating from the House.

The story of the “senatorial saucer” is based on a supposed breakfast meeting between Thomas Jefferson and George Washington. In 1872, Moncure Daniel Conway told the story as follows:

There is a tradition that Jefferson coming home from France, called Washington to account at the breakfast-table for having agreed to a second, and, as Jefferson thought, unnecessary legislative Chamber.

“Why,” asked Washington, “did you just now pour that coffee into your saucer, before drinking?”

“To cool it,” answered Jefferson, “my throat is not made of brass.”

“Even so,” rejoined Washington, “we pour our legislation into the senatorial saucer to cool it.”1

The story received widespread circulation when it appeared in Harper’s New Monthly Magazine in January 1884.2 Since then, the tale of the “senatorial saucer” has been repeated many times, usually prefaced by “the story goes …,” or some similar phrase.

To date, no evidence has surfaced that such a conversation between Jefferson and Washington actually took place.

The filibuster was never “established” by a specific act; it emerged organically. Some analysts suggest that it began during the first decade of the 1800s, when senators mistakenly deleted a rule empowering a majority to cut off debate, though others disagree.

In any case, the Constitution delegates internal rule-setting to the Senate itself, and for much of its history, the chamber did not implement a mechanism to maneuver around a member determined enough to block action by mounting a filibuster.

It took until 1917, when the Senate voted to empower a supermajority of 67 to cut off a filibuster and move on to other business, using a motion known as “cloture.” Then, in 1975, the Senate voted to lower the supermajority to its current number, 60.

Those 60 votes have become a significant hurdle in a chamber that has not often had one party win that many seats — and especially in recent years, as the two parties have become more polarized and more willing to filibuster, even on matters that had previously been treated as routine.

What did the framers say?

Something we know for sure is that the filibuster does not appear in the Constitution.

The Constitution does include two tools that can be used by a minority to delay action — refusing to vote, and repeatedly calling for roll call votes, wrote Gregory Koger, a University of Miami political scientist, in his 2010 study, “Filibustering: A Political History of Obstruction in the House and Senate.”

Some founders, such as George Mason, acknowledged “inconveniences” caused by the blocking actions of a minority but also believed that the fear of such blockages could have an energizing effect on the legislative process, according to contemporaneous notes cited by Koger.

Other founders, including James Madison, more strongly opposed a minority being able to block the will of the majority.

Madison wrote in Federalist Paper 58 that a determined minority could “screen themselves from equitable sacrifices” or “in particular emergencies, to extort unreasonable indulgences,” possibly leading to the “ruin of popular governments.”

Ultimately, the founders took something of a middle path in the Constitution. They required a majority quorum to do legislative business, which Koger sees as a “balance between the delegates’ fear of mischief by small numbers of legislators and their concern that a high threshold would paralyze Congress at critical moments.”

And the founders decided that one-fifth of those present could request a roll call vote. While this was another potential delaying tool for minorities, it represented a middle ground between allowing just one member to request a vote and not recording votes at all, Koger wrote.

The founders may have felt that “an occasional episode” of delay “might do more good than harm, but the Federalist Papers suggest that they did not intend obstruction to systematically impede majority action on most classes of legislation,” Koger wrote.

Our ruling
Todd said, “The filibuster was never an idea of the Founding Fathers.”

The founders never wrote into the Constitution a filibuster, and contemporaneous writings suggest that the founders’ views ranged from ambivalent to negative about the value of delaying tactics in general.

The founders were aware that some of the provisions they included in the Constitution could be used by a determined minority to delay legislative business, even if that was not was not the founders’ reason for including them. In any case, the filibuster used in the Senate today was not among the provisions included.

We rate the statement True.