Posted on 03/03/2003 4:39:36 PM PST by xzins
The United States Senate, often thought of as the world’s greatest deliberating body, has an interesting idiosyncrasy which can hold up the entire process of debating and passing legislation. This potential clog in the plumbing of legislating is called the filibuster. Basically, the filibuster is the ability of one or more senators to hold the floor and refuse to yield it to another senator from the opposing view. The senator or group continuously talks until the bill is dropped, the senators get tired of talking, or a supermajority votes to stop them. This paper will explore the filibuster, taking special care in exploring it’s origins, the growth of it’s use, types of bills it’s used on, and if reform of Senate rules regarding the filibuster are necessary and possible.
What is the filibuster?
It might be easiest to start with where the word filibuster came from. In the book Politics and Principle, Sarah Binder and Steven Smith set forth the history of the word in a section they call “From Freebooters to Filibusters.” The word filibuster only actually came into play in the senate in the late nineteenth century. According to Binder and Smith, the origin of the word appears to be a cross between the English and Dutch for free booty, a term to describe looters who lived on others’ booty and spoils. The Dutch was translated into English as flibutor, and then became freebooter. The word slowly became filibuster and was used in the Senate to describe Senators who had developed techniques for holding up legislation that they were opposed to.
The ability to filibuster has its roots in the founding period and in the Standing Rules of the Senate. It is important to note that filibusters are not the normal occurrence, and in fact they are rarely employed. Filibusters can only be used when an Unanimous Consent Agreement is not in place, meaning that all Senators have not agreed to limit debate. If all the Senators do agree to limit debate through the Unanimous Consent Agreement, which most often is the case, the filibuster is no longer an option. The ability to filibuster is drawn from the rule of unlimited debate. The senate is permitted to debate on a bill unlimitedly unless before debate all Senators agree to limit their ability to debate. Thus, on non-controversial matters, Senators will usually waive their right to unlimited debate.
“Generally characterized in the public mind as a non-stop speech, a filibuster in the fullest sense employs every parliamentary maneuver and dilatory motion to delay, modify, or defeat legislation.” (B) So, the filibuster is not just one man rambling on and on to hold up the floor of the Senate, as is characterized by Jimmy Stewart, in “Mr. Smith goes to Washington.” Although this can be an integral part of it. The filibuster also employs a full arsenal of motions and objections. For example, one senator could add an unlimited amount of amendments to the bill, despite germaneness[2], and debate them all. In addition he can continually ask that a quorum call be in effect, keeping senators there at all hours. The key to the filibuster is to continually hold the floor and refuse to yield it to anyone but your supporters. If you are the only one filibustering, than you must keep the floor by yourself. One senator said about invoking a filibuster “if it takes unanimous consent, object. If not, you make a little speech, suggest and absence of quorum, then…use parliamentary procedures…motions to adjourn, motions to recess…” (C )
The filibuster is the last resort when it comes to stopping legislation. Most Senators do not want to start a filibuster because it virtually stops all floor action on any legislation, tying the floor up on one bill. Although on the floor it is the last resort, sometimes threatening a filibuster can be a powerful bargaining chip. By threatening to filibuster, Senators are able to give their input on a bill, possibly changing it, or preventing it from even being scheduled. Senator Byrd once said “In many instances, it’s the threat of the filibuster that keeps a bill from coming up.” (d)
The Founders and The Filibuster
As I have already stated, the word filibuster was not used in the Senate until the late nineteenth century, thus the founders never had this concept. “There is nothing to suggest that the right to filibuster was a feature of the original senate.” (A 29) It is obvious though, that the founders did want a legislating body that would carefully consider all bills and debate at length on them. In Washington’s words, “we pour legislation in the senatorial saucer to cool it.” (e) The Senates original purpose was to be the stable house in Congress, to take legislation from the House of Representatives and make sure that it was good law, not emotional majority will.
It is also quite apparent under current rules of cloture[3]>, that it would take a supermajority of sixty members of the Senate to pass controversial legislation under Senate rule 22. The framers intent was for a majority to pass legislation, not a supermajority because of the failings of the supermajority with the Article of Confederation. It is apparent in Hamilton’s Federalist number 22 that he was opposed to the need of a supermajority to pass legislation: “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is in it’s tendency to subject the sense of the greater number to that of a lesser number.” (f)
Also, it is seen that during the founding period that the right of unlimited debate was neither the expectation nor the approved practice. The political scientist Lloyd Cutler points out that they adhered to the precedent of the English parliament which allowed a simple majority to cut off a debate by a motion for “the previous question.” This device was included in sections eight and nine of the rules adopted by the first Senate in 1789, and was in effect until it was removed in 1806. (g) It appears that the previous question rule was not eliminated to take a stance on unlimited debate but rather because it was unnecessary. Vice President Aaron Burr urged the Senate to remove the rule in his farewell speech because it was being used to postpone decisions, and in his time in the Senate it had only been used once. However, there are other historians who argue that the Senate in 1806 wished to assure unlimited debate in the Senate despite the original intent by the framers. Edward Kearny and Robert Heineman say in their paper on the filibuster that “the right of unlimited debate in the Senate goes back to 1806, but it was not initiated not intended by the framers.” (h)
There, however, is no constitutional framework that says that senators should not have the right to unlimited debate. But, the filibuster which permits a small minority and even one senator to stop a piece of legislation, was not intended by the framers at all. In fact, it has been argued by some that because the constitution does lay down the times when a supermajority is needed, (i.e. 2/3 vote for convicting an impeached president and for signing treaties), therefore, only a majority should be needed to pass any legislation. This is further backed up by the Supreme Court Decision in United States v. Ballin, 1892. In this case, Justice David Brewer, speaking for the majority says “the general rule of all parliamentary bodies is that when a majority is present, the act of the majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case, the terms of the organic act under which the body is assembled have prescribed specific limitations.” (I)
Thus, I believe it to be shown that despite no explicit constitutional references, the framers did not have in mind the filibuster in the Senate during the founding period. The concept came later as a result of the expulsion of the previous question rule and eventually the adoption of Rule twenty-two.
Why Filibuster?
The original use of the filibuster was employed by senators who believed that the passage of a bill would violate the constitution or was just not a well written law. Historically, civil rights issues have been the single most common filibustered issues. “Overall, 45 civil rights measures and 289 non-civil rights measures were the targets of filibusters through 1992.” (A 85) The range of issues that the non-civil rights measures cover is enormous. The use of the filibuster in today’s political climate has changed significantly since it was originally employed. The measures that are being filibustered are often being held up due to very narrow or parochial concerns.
There are also examples were items are threatened with filibuster for unrelated reasons. These threatened filibusters show up on no charts, but are still sometimes recorded. For example:
Senator Nathaniel Dial (D-South Carolina) threatened to hold up senate action on a bill which provided for the mergers of the meat packing industry if his separate bill concerning the compensation of an Internal Revenue collector was not considered. One senator indicated that he would object to Dial’s bill, so Dial objected to the consideration of the meat packer’s merger bill. Dial’s threat appears to have been taken seriously because the meat packer’s bill was pulled from the floor. (J)
It is obvious that Senator Dial was only using the filibuster for his own personal gain in his state on an unrelated parochial concern.
It should also be noted that filibusters are often a result of partisan interests and with the civil war period, sectional interests. Now, this is not a change since the earliest filibusters as some might think, but instead it represents a continuation of party lines throughout the history. The chart in Appendix A from the book Politics or Principle, shows some of the issues filibustered or threatened and shows that the majority of them were on partisan or sectional grounds. This trend reflects what we see in filibusters in the modern era, that they are most often partisan in nature.
Thus, traditionally the filibuster was used only in cases of constitutionality but as time has progressed we see a trend in the missuse and trivializaton of the filibuster.
The Move Towards Cloture
As we pointed out earlier in the essay
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[1] Unanimous Consent Agreement—This is an agreement asserted by all senators before beginning debate that permits the senate to limit debate. This normally occurs on bills being debated by the Senate in order to speed of the process of passing legislation. It is important to note that it takes only one Senator to not sign the agreement and the bill must be taken to the floor with open-ended debate.
[2] Germaneness—In the Senate, unless the rule has been created in the Unanimous Consent Agreement, senators may propose non-germane or unrelated amendments to the bill.
[3] Cloture—A motion that can be filed to shut off a filibuster. It will be explained in more detail later in the paper.
abstract source The filibuster in the United States Senate imposes an effective supermajority requirement for the enactment of most legislation because sixty votes are required to bring a measure to a vote over the objection of any senator. Filibusters are ubiquitous but virtually invisible, for the contemporary Senate practice does not require a senator to hold the floor to filibuster; senators filibuster simply by indicating to the Senate leadership that they intend to do so. The prevalence and invisibility of this "stealth filibuster" dramatically affects which legislation is passed and which nominees are confirmed. The stealth filibuster also raises serious constitutional questions. Summarizing the historical development of Senate filibusters, Professors Fisk and Chemerinsky show that the nature and effects of filibusters have changed significantly as the Senate has grown larger and busier. They argue that, although dilatory debate has a history, the modern stealth filibuster is in significant respects unprecedented. Professors Chemerinsky and Fisk also assess the effects of the filibuster on Senate practice in light of empirical and public choice theories of congressional behavior. Based on this, they conclude that the filibuster is not alone among congressional procedures in being antimajoritarian and that it may counteract the antimajoritarian aspects of other congressional procedures. Professors Fisk and Chemerinsky then discuss the constitutionality of the filibuster. They first conclude that a judicial challenge to the Senate rules that permit it would be justiciable if brought by proper plaintiffs. They then conclude that, although the filibuster itself is not unconstitutional, the Senate rule that prohibits a majority of a newly elected Senate from abolishing the filibuster is unconstitutional because it impermissibly entrenches the decisions of past Congresses.
Here's another example:
Let's say that the election of 2000 had remained unresolved, with Florida casting no electoral votes, thus throwing the election to the House.
The House would elect (Bush) president, the Senate, in this case, would elect the Vice President. Since the Senate was divided 50-50, both Lieberman and Cheney would tie in the Senate's vote. Vice President Gore could then cast the tiebraker vote for Cheney.
Although Senate rules would normally prohibit Gore from voting due to confilict-of-interest, Gore would, I'm sure, invoke the Constituion and break the Senate's rules and elect Lieberman as Vice President.
My interest involves the constitutional provision that Senators advise/consent on presidential nominees (Art II, Sect 2). There is also a provision that the Senate can make its own rules (Art I, Sect 5). These 2 are in conflict.
It has long been my opinion that a specific responsibility contained in the Constitution should not be subordinate to an organizational rule specific to one house of the Congress.
Art II, Sect 2: and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Article I, Section 5: Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
That actually answers some things I've been wondering about for a few years. Back in 8th grade, I remember learning about the Constitution and having to identify and define the term "filibuster." I was confused when I didn't see it in the actual text of the Constitution, but it was inserted in the margin next to the part of Article I where free and unlimited debate was granted in the Senate.
I can find the "no penalty" for any debate on the floor of either House in Article I, Section 6, but nowhere does it imply anything about support for a "filibuster". A "filibuster" is entirely a matter of the procedures and rules that each House has adopted over time. "Unlimited debate" is found nowhere in Article I.
Article I:
Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
Source: United States Constitution
Originally posted by Jonez712:
Although it hasn't been around since our nation's conception, it seems Constitutional enough to me. The writers of the Constitution even put in the clause concerning cloture (3/5 of those present), so I guess they anticipated overly lengthy debate at least.
Where did you go to school??? The Founders put no such clause in the Constitution concerning cloture at all!!! Unlimited debate is just an institutional holdover from the early days of both Houses which only survives in the Senate today. The "cloture" rule to limit debate originally required a two-thirds majority vote from 1917-1975, and was changed by the Democrats to a three-fifths majority vote in 1975 (since the Dems had 60 members then) to enable debate to be more easily cutoff.
Here is the information from the United States Senate website concerning Filibusters and Cloture:
Filibuster and Cloture
Using the filibuster to delay debate or block legislation has a long history. In the United States, the term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill.
In the early years of Congress, representatives as well as senators could use the filibuster technique. As the House grew in numbers, however, it was necessary to revise House rules to limit debate. In the smaller Senate, unlimited debate continued since senators believed any member should have the right to speak as long as necessary.
In 1841, when the Democratic minority hoped to block a bank bill promoted by Henry Clay, Clay threatened to change Senate rules to allow the majority to close debate. Thomas Hart Benton angrily rebuked his colleague, accusing Clay of trying to stifle the Senate's right to unlimited debate. Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote -- a tactic known as "cloture."
The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.
Many Americans are familiar with the hours-long filibuster of Senator Jefferson Smith in Frank Capra's film Mr. Smith Goes to Washington, but there have been some famous filibusters in the real-life Senate as well. During the 1930s, Senator Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor. The Louisiana senator frustrated his colleagues while entertaining spectators with his recitations of Shakespeare and his reading of recipes for "pot-likkers." Long once held the Senate floor for fifteen hours. The record for the longest individual speech goes to South Carolina's J. Strom Thurmond who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.
Source: United States Senate: Home>Art&HistoryHome>Origins&Development>Powers&Procedures
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dvwjr
Perhaps it would be better to amend the rules- for instance to deny filibuster of nominations after a period of time since a circuit nomination was reported from committee.
That would require the approval of 2/3 of those present instead of 60.
That would precipitate a real knock-down, old-fashioned filibuster!
google cache "To amend the Standing Rules of the Senate, a simple majority vote is required. However, to invoke cloture on a measure that would amend these rules requires a two-thirds vote."
"RULE V SUSPENSION AND AMENDMENT OF THE RULES 1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.
RULE XXII PRECEDENCE OF MOTIONS "Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of. "
Isn't the Senate also tasked to adopt rules under which it operates?
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