Filibuster

Filibusters, Cloture, and the Current Spin

Let's get the basics out of the way first:

Filibusters: In the early days of the US House and Senate, the rules of each allowed in one form or another an unlimited debated on a topic. If a single person or group was able to get unlimited speaking time they could block any legislation or action by never shutting up. This technique is known as a filibuster, from a Dutch word meaning "pirate".

Cloture: The US House eventually enacted rules limiting debate due to their larger size. The Senate continued to allow unlimited debate until 1917 when the Senate enacted rules allowing two-thirds of the senate to end a filibuster. This was later reduced to three-fifths in 1975. Ending a filibuster with these rules is known as cloture.

How far back does this debate on changing senate rules to stop filibusters go? 1841, during the debates over a bank bill that Democrats at the time were attempting to block from the Whig majority.


So here we are in 2005, 164 years later having similar arguments.

Long gone is the naive notion that we're actually trying to protect unlimited debate purely for the ability of the Senate to make the most well thought out decision possible. We know what the filibuster is used for these days. It isn't to change minds or ensure that every idea is considered on an issue with the needed clarity. It is the minority party reading newspapers or Shakespeare ad nauseum until the other side either gives up on an issue or other time limitations on a vote or decision end the possibility of a vote taking place.

People crying to the heavens that trying to end the filibuster is an attack on democracy itself apparently missed the point of the Senate itself being a check on democratic mob rule by design. For a majority of the people to inflict their will on the minority they need a majority of the representative districts and, with the senate, a majority of the State's senators. This effectively increases the difficulty of passing legislation from a party that merely has majority support by population but in a minority of States and also has the same effect on a party with minority support by population that merely has a great number of less populous states that support them.

So what if the party has majority popular support and the majority of States backing them? What's to protect minority rights then? If the majority has under two-thirds support in both houses they'd also need a President to back them. If they also hold the Executive branch, the protection from legislation against the minority falls to the Supreme Court to uphold the Constitution and toss out unconstitutional laws that may infringe upon the minority's rights, powers, etc.

Without two-thirds support though the majority party would still be unable to propose amendments to the Constitution or ratify treaties without the minority party being on board. And actually amending the Constitution would require three-fourths of the States to ratify.

These are all ways of protecting the minority from the will of majority that has obtained a great deal of power.

Does this make the filibuster useless in the game of checks and balances? The answer is no.

Without the filibuster in the Senate the majority party with control in the House, Senate and Executive seats can also infiltrate the Judiciary with their own people to get the legislation they pass ruled Constitutional, regardless of whether it is or isn't. A frightening concept to those in the minority party. What helps prevent this is that there must be an opening during their time of control and the Presidency is now limited to two terms. So it is far more difficult for a President to replace enough Supreme Court justices to get his unconstitutional laws passed without amendment than it was for FDR prior to the two term limit.

The Constitution was meant to be a fairly realistic design for central government, but it may have still been a bit too idealistic when it came down to political party power. We aren't talking about 100 independent thinkers attempting to make a decision that best serves their State's interests. We're talking about two groups of people fighting over nationwide issues and grouping together to serve that Party's interests. The Constitutional framework certainly impedes such power struggles but allowing the filibuster takes it a step further and adds a bit more difficulty to passing legislation as well as confirming executive and judicial appointments by a party that has a simple majority in the Senate. The rules on cloture seem to reflect a reasonable balance between keeping a party with a simple majority from doing serious damage to our rights when they have control over the House and Executive office as well, but considering the other impediments to such issues built in to the Constitution do not require excessive majority support to end a filibuster either.

The concern that a minority party could effectively shut down government operations with an effective filibuster in the Senate may in time force the discussion of reducing the number of votes to end debate to something slightly lower.

Relevant Constitutional Provisions:

From Article I, Section 5: "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

From Article II, Section 2: "[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; 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 question is obvious.

If a minority party can block the decision of the Senate to confirm an appointee or not, is this a violation of Article II? Even if Article I specifically states they can set their own rules for their proceedings?

Reading unrelated materials to extend the debate to the point that no vote is held is hardly advice, but the placement of this Senate duty is in the article describing the Executive branch. It is not in the article about Congressional responsibilities or powers. It is essentially saying the President has this power, but only if the Senate lets him and only after they've had the opportunity to advise him on the matter. It doesn't say that the Senate must give him advice nor give him consent.

He can't demand they reconvene to give him advice and consent on an appointment. But if they are in recess he can make a temporary appointment that will expire at the end of their next session.

From Article II, Section 2: "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."

Arguments that the Senate must decide in some timely manner on Presidential appointments does not appear to have the Constitutional support proponents of the idea claim.

The wording and the placement appear to put this in the category of a check on Executive power far more than an obligation of the Senate. But I will admit that this is a gray area to be certain. And I am open to arguments that this is indeed a Senate obligation if anyone would like to put it forward with their reasoning.

I doubt you'll hear anything relevant to the actual checks and balances or democratic issues that really matter to the current filibuster debate from the talking heads or politicians that just want to keep or obtain the power that the issue could provide.