It’s better than counting sheep. It is boring beyond belief, and it accidentally explains why ordinary voters would rather chew on tinfoil than think about Senate procedures. Ever chew on tinfoil? It hurts like hell.
Several years ago, the Hawaii State Association of Parliamentarians put together a series of videos illustrating the exercise of Robert’s Rules of Order. Yeah they are excruciating. Tedious to the point of endangering large groups of neurons, deadening once electrically excitable brain cells.
But one brief video includes the arcane way Aaron Burr inflicted more hidden damage on the country than he or anyone else realized at the time.
Aaron Burr? Yeah, Aaron Burr. The same guy who shot and killed Alexander Hamilton. That Aaron Burr.
This is what’s in the video.
The Chair recognizes Dr. Begimign.
There has been enough discussion. I move the previous question.
The previous question is moved.
A vote follows. The vote is not on the question. The vote is on whether to vote on the question.
Aaron Burr was always a bit of a schemer. He and Thomas Jefferson campaigned together in 1800, Jefferson for President, Burr for Vice President. In those days, votes by state electors did not automatically go to candidates. Electors usually declared ahead of time who they supported. But after they were selected, they decided for themselves who to vote for.
Before the electors were set to vote, letters became public that seemed to show a conspiracy by Aaron Burr and a few others to switch just enough electoral votes to make Burr President Burr instead of Vice President Burr.
The letters made enough electors angry to almost cause them to reject Aaron Burr for either office. Oops.
But he managed to become Vice President anyway.
Jefferson never trusted him after the election conspiracy. He pretty much closed Aaron Burr out of all important meetings, any significant decisions, and whatever information he might have used to expand his resume. He was isolated.
There was one role that could not be closed to him. It was in the Constitution. As Vice President, he took over the most uninteresting job in American history. He became the President of the Senate. He counted votes, ruled on procedures, maybe cast a vote or two himself in case of a tie, and was generally bored out of his mind.
Still, he did a pretty good job leading the Senate. He got a lot of credit for fair minded conduct.
In 1804, Jefferson ran for President without Aaron Burr. Burr was out of a job. A couple of years later, he made some recommendations.
One was eliminating the calling of the question.
I move the previous question.
The idea of waiting for debate to eventually wind down, then voting on whether to vote seemed to him one of the most pointless, boring procedures in the entire list of tedious methods in the entire tedious Senate rulebook. Why vote twice on everything?
Aaron Burr had not yet killed Alexander Hamilton, or tried to establish his own country in the Louisiana territory, or generally gotten known as an all around traitor to the United States. So he was still well regarded.
“I move the previous question” was taken out of the Senate.
Yay for simplicity!!
Except there was no longer a way to end debate, not until every last Senator had said every last thing that had entered every last Senator’s old gray head to say. Boring got even more boring.
After a while, boring got to be more than boring. It got to be obstruction. Folks who didn’t like one law or another could just talk and talk until everyone else gave up.
Thanks one hell of a lot, Aaron!!
It was no way to run a country, but there we were.
And there we stayed until 1917. A dozen anti-war Senators blocked President Wilson from arming ships to defend themselves from prowling German U-boats. So the Senate adopted a rule that allowed two thirds of the members to finally shut off debate.
Even two-thirds was a hard level to reach. A sort of gentleman’s agreement got to be tradition. Senators would not talk anything to death unless it was really, really important to them.
Guess what was important to conservatives!
Senators from the old Confederacy filibustered against bills that would outlaw lynching black people. So the “strange fruit” Billie Holiday sang about, black bodies hanging from poplar trees, continued to haunt America. Later, other Civil Rights laws were also blocked by conservatives.
In 1975 the rule on ending filibusters was changed from two-thirds to three-fifths. 60 votes was still hard to get to in voting on whether to vote, but it was easier to get 60 votes than 67. And the informal tradition still held. Senators would not filibuster unless it was on really, really important issues.
In 2008, something startling happened. An African-American became President of the United States.
And a new tradition was born.
Republicans tossed out the informal agreement about only talking to death extremely important bills with which they vehemently disagreed. On the very day Barack Obama was sworn in, Republicans held a meeting. They decided among themselves to oppose anything, everything, proposed by the new President, no matter what it was.
Later, some conservatives insisted that Republicans had merely held up radical proposals by Obama, proposals conservatives thought were unconstitutional. To those of us who are skeptical about time travel, that seems unlikely. President Obama had taken office that very day. It is hard to make the case that he had submitted any proposals to Congress at all when Republicans decided to block everything.
So conservatives filibustered all new proposals.
They filibustered bills they themselves had originally agreed should be passed.
They filibustered bills they and their allies had recently proposed themselves.
At one point, they filibustered an emergency bill to supply troops in combat with essential materials, including the bullets they needed to fire back. There was nothing in the military bill with which Republicans disagreed. They simply wanted to delay Senate procedures, and they knew Democrats would keep the bill alive until they got enough votes to supply troops who were, at that moment, under fire.
Some Democrats wanted to change the rules right then. They argued that the ability of government to function at all was at stake. But there were not enough votes to change the rules. A few other Democrats hesitated. After all, the filibuster involved tradition.
Thanks to Aaron Burr.
Changing the rule was called the nuclear option and it seemed scary to some Democratic Senators.
When Republican obstruction of pretty much everything continued and continued and continued, Majority Leader Harry Reid and his Senate Democrats went to the nuclear option. Kind of. They eventually changed the filibuster back to where it had been before Aaron Burr suggested that new, destructive procedure.
Well, they almost did. Sort of.
Harry Reid and his Democrats ended filibusters that blocked judicial and cabinet nominees. That was it. They did nothing about filibusters that would kill routine legislation. And they still allowed filibustering against nominations for the Supreme Court.
So call it semi-nuclear.
Republicans yelled foul. How dare Democrats change tradition?
To reasonable observers (for example me) this seemed a bit one-sided. Conservatives were angry that Democrats would be willing to end Republican abuse of an arcane Senate rule. That abuse had succeeded in paralyzing government for too long.
And the motivation for that abuse had seemed clear. The total obstruction did not start until the very day a black President took office.
Years later, when Antonin Scalia suddenly died, it resulted in a new vacancy on the Supreme Court. Republicans announced in advance that they would not consider any nominee put forward by President Obama, no matter who it was, no matter the background, record, or qualifications. They would not allow any vote. They would not hold any hearings. They would not even hold any private meetings.
President Obama nominated Appeals Court Judge Merrick Garland, a known centrist that had been publicly suggested by Republican Senator Orrin Hatch. Republicans almost unanimously held to their threat. No votes, no hearings, no meetings, no chance.
It all seemed oddly familiar.
Republicans insisted that it was all traditional. The tradition was that no President would be allowed to nominate a Supreme Court Justice in the last year of his final term.
No such tradition ever existed before Barack Obama, unless you contorted the original three-fifths rule. That was the slavery compromise counting each black slave as three fifths of a person.
For over a year, the Supreme Court has had 8 members.
Now it appears President Trump’s nominee will be filibustered by Democrats. Some do not like President Trump’s nominee. But at least a few do not want to reward, in the name of tradition, unethical conduct by conservative Republicans.
President Trump has been given the opportunity to nominate a Supreme Court Justice, an opportunity that, according to the Constitution, President Obama ought to have had.
And it looks like Republicans might do what Democrats did not. They will extend the end of the filibuster to include votes on Supreme Court nominees.
And so we come to another moment that will be memorized by future history students.
The Trump nominee will go to the Supreme Court with a final end to the filibuster. America will live for a generation with a Supreme Court stolen by conservatives.
And the pernicious anti-democratic tradition, the tradition begun with an off-handed suggestion by a future killer and traitor, that tradition will finally meet its death.
Who knows? History may judge it to have been a good trade-off.
In public debate, some Republicans blame Harry Reid and his Democrats for the nuclear option. After all they started this entire filibuster controversy. Right?
To any reasonable observer (which is to say me), it seems as if Republicans are blaming Democrats for violating the most sacred tradition of all.
That tradition is this:
Only Republicans may violate previous tradition, for the most repulsive of motivations. Democrats, on the other hand, have an obligation to unilaterally disarm.
Oh. Let’s not forget the silent tradition that nobody likes to mention. A black President may only nominate a Supreme Court Justice in the first three fifths of his final term.
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