Burr, Hamilton, and Reid: How we got the filibuster and why we should kill it

by John MacBeath Watkins

(Update: The senate has now modified the rule: http://www.seattlepi.com/news/politics/article/Democrats-vote-to-curb-filibusters-on-appointees-4997967.php#page-1)

This blog started in March of 2010. The first post was Chaining the Word (blue monkey edition) and the second was Bust the Filibuster.

And here we are again, with Harry Reid, whose name makes me think of cattails (hairy reeds,) sending signals that he's planning to scrap the filibuster when it comes to executive branch and judicial appointments. This can be done by a simple majority vote to change Senate rules.

His logic is that Republicans have boxed themselves in to the point where compromise is impossible.  They have taken the position that President Obama should not be allowed to appoint a third judge to the powerful  D.C. Circuit Court of Appeals, not because there is any defect in the appointee, but because they don't want him to appoint anyone at all, because they don't want him to be able to tilt the balance of the court.

If a Republican president wished to appoint someone to the same court that would tilt the balance in a direction they liked, Republican senators would be fine with that. They simply want to prevent elections from having consequences when Democrats win.

Reid has in the past been pretty lukewarm on changing the filibuster rule. Faced about a year ago with a filibuster of several appointees to executive branch posts, Reid reached an agreement that the Republicans would allow the president to staff the government in exchange for senate Democrats not changing the rules. Now here we are again, with Republicans refusing to let the president staff the government.

Reid has quite reasonably come to the conclusion that the senate cannot remain a functioning institution when the filibuster is so flagrantly abused. But how did we end up with a filibuster in the first place?

You may thank Aaron Burr, who, fresh from shooting Alexander Hamilton to death, gave the senate a farewell address in which he said the senate was a great body, but its rules were a mess. He then went through the rules and pointed out points where they lacked clarity and had duplications. He had a great many recommendations, one of which was to eliminate the motion to move the previous question.

No one realized the importance of this at the time, but it meant that leaders had no way to cut off debate. In an 1841 debate over renewing the charter of the Second Bank of the United States (modeled on the first Bank of the United States, started by Hamilton,) Henry Clay tried to cut off debate by majority vote and was forced to back down because no rule allowed this. The filibuster had come of age.

It would be nice to believe that this rule was invented to preserve the rights of the minority, and
was sanctioned by the founding fathers, but it was a mistake, as Sarah Binder and Steven Smith pointed out in their book, Politics or Principle? Filibustering in the United States Senate.

Hamilton was perhaps the most brilliant and far-seeing of the founders, and as a mercantilist, an advocate of the power of government to develop the country. Burr, at the time of the duel, was U.S. vice president, having been denied the presidency in large part because of Hamilton's opposition. At that time, whoever got the most electoral college votes was president, whoever got the second most was vice president. Burr and Jefferson tied in the electoral college, throwing the election to the House of Representatives, where Hamilton lobbied hard against Burr.

Burr challenged Hamilton to a duel based on a third party claiming that Hamilton had declared that Burr was "a dangerous man, and one who ought not be trusted with the reins of government."

In the duel, Hamilton either deloped or fired into the air by accident when he was mortally wounded. Burr, true to the way he had been portrayed in the letter he objected to, shot to kill.

The two men were using the rules of the duel in much the same way Democrats and Republicans are now using the senate rules Burr designed, one side attempting to satisfy honor without causing harm, the other to express rage and destroy an enemy. Such an unequal contest cannot end well unless either the rules change, or the side intent on destroying an enemy decides to make peace.

The latter seems unlikely to happen, given the dynamics of Republican primary contests.

So, I expect the power of the filibuster to be greatly reduced. Perhaps it will one day be eliminated. And then, perhaps we will begin to judge government based on what parties do, instead of what the find they cannot do.

Hairy reeds.