The continuing government shutdown has brought back the discussion of ending the filibuster. It calls to mind previous episodes when the majority party in the U.S. Senate felt hamstrung by the minority. But maybe the real answer is bringing back the real filibuster, instead of the phony one that they have now.

Most people assume that the “filibuster” is simply a Senate rule that all legislation must have 60 votes to pass, instead of a simple majority. People often defend it as if it’s a pillar of our legislative process. But that’s not how the filibuster actually worked during most of the country’s history.

The actual meaning of a “filibuster” is to go on speaking, tying up everything else. It steals time from the regular legislative process. Thus, it comes from a Dutch word meaning “pirate.”

The U.S. House limits the length of time a member may speak on any item to one hour. But the Senate has never had a limit on how long a member may speak. Originally, however, both branches allowed a majority vote to end debate and force a vote.

But in 1806, under Vice President Aaron Burr, the Senate eliminated the rule allowing a vote to end debate. According to some reports, it was rarely used and they considered it unnecessary. Other sources say it was an accident.

But that opened the door to the “real” filibuster. A small group of senators who wanted to stop a bill could hold up all Senate business indefinitely by talking for days, weeks, or longer. But they had to keep talking. They might read from the newspaper, or the phone book, or anything. It took considerable stamina. It also had the powerful effect of literally shutting down all other Senate business until someone gave in. That’s what the real filibuster was all about.

In 1841, a filibuster against reestablishing the Bank of America went on for two weeks. In 1846, a filibuster regarding the Oregon Bill lasted two months. But overall, they were relatively rare. According to many accounts, there were only 23 filibusters during the entire 19th century. It wasn’t easy to do!

The filibuster was changed in 1917 when some senators used it to oppose a bill to arm merchant ships during World War I, which particularly angered Woodrow Wilson. He persuaded the Senate to pass a rule allowing debate to be ended by a two-thirds majority of those present, a process now known as “cloture.”

However, two-thirds is a pretty high bar, so filibusters continued through the mid-20th century. Senators would read aloud Shakespeare, George Washington’s speeches, various state laws, and anything else.

Strom Thurmond set the one-man record by speaking for 24 hours and 18 minutes against the Civil Rights Act of 1957, which eventually passed anyway.

But in the early 1970s, the Senate made the two major changes transforming the process into what we see today. First, they allowed the Senate to put aside a bill being filibustered and deal with the other Senate business -- thus no longer tying up the whole process. Second, they lowered the cloture requirement to three-fifths of the membership -- 60 votes.

This had the unintended effect of increasing “filibusters” enormously -- from a few dozen to thousands. All one member has to do is announce that he intends to filibuster a bill, and it gets put aside requiring a cloture vote to pass. No actual filibustering is necessary! Every Senate bill of any contention gets the 60-vote requirement almost automatically.

If Chuck Schumer and his gang actually had to stand up and talk for days at a time, maybe they wouldn’t be so arrogant about keeping their Obamacare subsidies in the federal budget. And if the rest of the Senate couldn’t do any other business until all this was completed, that would be fine with a lot of us. Of course, the same thing goes for the Republicans when they’re in the minority. In any case, if you’re going to have a filibuster, make them do it right!

I’ve been on some Zoom calls where I’ve talked to Senate staffers about this. They politely nodded their heads and “agreed” with me. But the fact is, our senators and congressmen -- too many of whom are decrepit senior citizens -- don’t want to have to do any actual work. They want life to be easy. Come to think of it, that’s another reason to bring back the real filibuster!

Image: Public Domain