13 May 2021
By Bernardo Nascimento, The European Institute for International Law and International Relations.
The filibuster, as it is contemporarily known in the context of the United States, is a legislative tool used in the Senate that “imposes an effective supermajority requirement for the enactment of most legislation”, considering that, to bring a proposal to vote after it has been filibustered, it needs to have sixty votes in favour (Fisk and Chemerinsky 1997, p. 181). It is, nowadays, a very common procedure on the Senate and is widely used by both political parties, having permeated “virtually all senatorial decision making” (Oleszek et al. 2015, p. 271).
In this context, this essay will tackle the issue of the filibuster, joining in the number of articles arguing for its reform. Moreover, this paper will portray how the current filibuster has no resemblance to the filibuster from the past, and that it has become not only a literal minority veto, but also counter-productive for the regular functioning of a representative democracy. The following pages will be divided between: (1) a contextual introduction, diving into the history of the filibuster and its metastasisation into what it represents today, (2) a portray of the more common arguments in favour and against the filibuster, and (3) possible avenues for reformation of this contested procedural instrument.
The presence of the filibuster in political contexts is traced back to the Roman Senate (Luce 1992, p. 272, Nippel 1995, pp. 11-12), and, throughout the centuries, has been present on many different political institutions. In the United States, the filibuster was not a thoroughly theorized legislative tool, considering that it appeared as a consequence of the elimination of the “previous question” (Binder and Smith 2001; Gold 2018, p. 44). This previous question was a parliamentary motion intended to be applied as a “motion to postpone” discussion and delay debate, nonetheless, it was also used as a literal “cloture device”, and therefore, a means to eventually end the debate and force a vote (Chafetz 2010, p. 1023; Gold 2018, pp. 49-50). Following recommendations by former vice president Aaron Burr, the previous question was abolished in 1806 as a consequence of its infrequent use, which opened up “the possibility of filibusters without recourse” (Chafetz 2010, p. 1023; Bondurant 2011, p. 468; Gold 2018, pp. 49-50). Thus, this meant that debate could now be perpetuated across days, considering the vacuum this left in the Senate’s legislative toolkit.
During the first three or four decades of the 19th century, the filibuster, – or more precisely -, the use of extended or unlimited debate, had no meaningful significance on America’s legislative procedures (Fisk and Chemerinsky 1997, pp. 188-192). Only some years after, during the second half of the 19th century, did the filibuster start to manifest its importance, and thus contrasting with Thomas Jefferson’s (1874, cited in Fisk and Chemerinsky 1997, p. 189) idea that “No one is to speak impertinently or beside the question, superfluously or tediously.”. Picking up on taxonomy applied for mercenary warfare and piracy (see May 2002), the filibuster was formally recognized in the Senate in 1856, marking “the beginning of over a century of virtually unrestricted debate” (Beeman 1968, p. 433). The preliminary decades of the use of the filibuster as an enshrined practice were not specifically fruitful. In fact, this legislative instrument only gained more prominence with the rise of anti-civil rights rhetoric espoused by Southern lawmakers (Fisk and Chemerinsky 1997, pp. 195-200; Binder and Smith 2001, p. 89). During this period, the filibuster was still brewing into what it represents today. Nonetheless, it was already creating tense situations and, in 1917, following a series of filibusters engendered by the Democratic side to block the armament of American ships to counter German aggressions at sea, a cloture device for the filibuster was introduced (Bondurant 2011, pp. 473-474; Jacobi and VanDam 2013, p. 274). This senatorial conundrum that birthed the possibility for cloture of a filibuster led then President Woodrow Wilson (1917) to make a statement which is vastly cited in this context:
The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible. The remedy? There is but one remedy. The only remedy is that the rules of the Senate shall be altered that it can act.
As such, the presidential angst against the practical applications of the filibuster, coupled with massive public pressure, – specifically considering that all this was taking place on the onset of the First World War –, materialized in the adoption of Rule XXII, a parliamentary motion allowing for “two-thirds of the senators present and voting… to end debate on a measure through a motion for cloture” (Bondurant 2011, pp. 474; Jacobi and VanDam 2013, p. 274). This move represented the first formal manifestation of a method to mitigate the impact of the filibuster. However, until the 1970s, the cloture device set in place was of doubtful efficacy, considering that from 1917 to 1970 only 8 cloture procedures were invoked (U.S. Senate).
During the period spawning from the adoption of the motion for cloture to the post-civil rights movement, the filibuster became almost entirely intertwined “with the battle over civil rights” (Fisk and Chemerinsky 1997, p. 199). Senate procedures aiming at curbing practices such as poll taxes or lynching were met with perpetual pushback, with the anti-civil war movement meeting its apex following the 1964 Civil Rights Act (Fisk and Chemerinsky 1997, pp. 199-200). These conflicts in the Senate led to two major procedural changes that had some effects on the filibuster. In 1970, a two-track system was established, allowing different proposals to be taken care off in the Senate, even with the presence of filibuster legislation. This meant two things. First, that the Senate’s business was no longer entirely tied around filibuster legislation (Fisk and Chemerinsky 1997, p. 201; Chafetz 2010, p. 1010). Second, that a silent filibuster became possible, and that now “a senator could filibuster an issue without uttering a word on the Senate” (Fisk and Chemerinsky 1997, p. 201). This latter effect categorically decreased “the costs of filibustering”, considering that there was no longer the need for a filibuster to “summon the physical endurance to hold the floor” (Chafetz 2010, p. 1010). As such, the two-track system developed by then Majority Leader Mike Mansfield, created a situation where, as accurately pinpointed by Chafetz (2010, p. 1010):
[T]here was no longer any reason to treat the filibuster as an extraordinary measure, used in cases in which the minority had very intense preferences. The tracking system… has enabled the filibuster to become regularized.Following the progressive permeation of the filibuster in the Senate, the other substantial change to the Senate’s procedures was in 1975. This adjustment was focused on the motion for cloture used to bypass the filibuster, lowering “the threshold to sixty votes”, or three fifths, from the previous two-thirds (Magliocca 2011, p. 314). The move to lessen the number of senators required to counteract the filibuster facilitated the cloture process, nonetheless, the filibuster still remained a highly effective blockade tool for proposed legislation. In fact, with the earlier development of the two-track system and the emergence of the silent filibuster, this legislative tool which was already categorically efficient became even more so, transforming the Senate into what effectively is a “supermajoritarian institution” (Oleszek et al. 2015, p. 270).
In our current days, the filibuster remains an extremely contested legislative instrument. On one side, the proponents of the filibuster argue that its existence protects minority rights against the tyranny of the majority, that it is historically ingrained in the Senate’s procedures, that it encourages “compromise on especially divisive matter” and that it brings stability to this legislative body (Gerhardt 2004, pp. 449-450). On the other side, arguments against the filibuster are based on claims that the need for a supermajority to pass legislation “casts a shadow over democratic self-government” (Magliocca 2011, p. 304), thwarting majoritarian rule and permitting “small minorities to extort unwarranted concessions in bills” (Oleszek et al. 2015, p. 272), and that it lacks a logical foundation, considering that the “issues for which the Constitution provides supermajority requirements – impeachment,… constitutional amendments,… should indicate that a majority otherwise suffices” (Chafetz 2010, p. 1014).
Regardless of the irreconcilable and broad array of claims espoused by academics of various sorts, policy makers and, specifically, legal scholars, there is the presence of empirical data that supports the idea that senators have thoroughly abused the filibuster. Regarding empirical data, the use of the Senate’s filibuster is hard to track, considering that, nowadays, “Senators can simply indicate that they would filibuster, and that threat can affect how the leader proceeds” (Oleszek et al. 2015, p. 270). Notwithstanding, it is possible to analyse the number of cloture motions (which are a consequence of filibustering) and the productivity in the Senate. Looking at data from the United State’s Senate, it becomes clear that invoking cloture has become an ordinary procedure, and that the Senate does not seem as productive as it was before the current filibuster transformed it into a supermajoritarian legislative body (Frederickson 2020). Besides this, there is also the widely accepted fact that the filibuster from the past has nothing to do with the filibuster from the present. In fact, according to Fisk and Chemerinsky (1997, p. 184):
The modern filibuster… has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it.
Moving forward, this paper will now illustrate a number of pertinent frameworks to reform the filibuster. As such, the following paragraphs will focus on three major avenues for the filibuster: (1) moving from dual-track to single track, (2) creating boundaries and limiting the filibuster’s use and, (3) lowering the threshold to invoke a motion for cloture.
Considering the first change to the filibuster, namely, the shift from dual-track to single track, the main purpose of this reform would be to abolish the silent filibuster. By not allowing a proposal to be filibuster by a mere threat would revert the changes made in 1970 and increase the costs of filibustering. This manoeuvre would effectively bring back the talking filibuster and de-regularize the use of such legislative tool by physically forcing senators to hold the floor. The downside of this proposal is that it would also tie the Senate on filibustered legislation and, consequently, limit this body’s ability to take care of more legislation at the same time. Nonetheless, the cost-benefit relation could in fact be more rewarding, considering that the use of the filibuster would involve greater effort, more rhetorical skills, and bring back increased dialogue and debate.
The second proposal for reform of the filibuster is also aimed at reducing filibuster abuse. As previously portrayed, the filibuster has become deeply ingrained in senatorial procedures and made the Senate into a supermajoritarian structure. By creating areas out of reach of the filibuster would limit its sphere of influence and allow for legislation to be passed on issues of detrimental importance, such as voting rights. As such, the filibuster would remain under the same framework where it currently is, being still allowed for other legislation, however, there would be the creation of “strict restrictions on debate about laws on certain subjects” (Magliocca 2011, p. 327). This proposal would therefore increase the Senate’s efficacy to pass legislation on subjects more detrimental to American life, side-lining the filibuster for subjects of less importance.
The third and final proposal this essay concerns lowering the threshold to invoke a motion for cloture. In this framework, following the developments already perpetuated in 1975, the motion for cloture would be the target of what is sometimes termed as the “sliding scale model” (Eidelson 2013). This path would mitigate the menacing effect the filibuster has had, acting as a counter agent concerning the current need for a supermajority. Following this principle would enable the preservation of “the deliberative virtue of giving a hearing to minority concerns, without surrendering the principle of majority rule at the end of the process” (Eidelson 2013, p. 1019). There are different ways to implement such as system, nonetheless, all of them are based on the same premise which would be to simply reduce the number of senators needed for invoking a motion for cloture. This could be applied in parallel with the second proposal, creating a framework where, for specific and more salient issues, a supermajority would not be necessary to vote on a bill.
During the course of this essay, the filibuster was portrayed as a legislative device that appeared without much deliberation. As it was shown, the abolishment of the previous question led to the possibility of unlimited debate, which, for the first decades, was not a cause for extraordinary concern. However, on the onset of the America involvement in the First World War, the filibuster started to flourish as a powerful tool, specifically on the context of senate minorities. On top of this, for the following years, the filibuster became highly associated with anti-civil rights movements, blocking many important reforms and acting as a backstop to societal progress in America. On the following years, there were some changes made to the organic structure of the filibuster, which enabled the silent filibuster and changed the way this process was enacted in the Senate. As a consequence, the filibuster became a regular procedure and managed to mould the Senate’s balance of power, making it into a literal supermajoritarian body and.
This paper made the relevant considerations regarding the diverging approaches to the filibuster, highlighting two dichotomic schools of thought in the context of the acceptance of this legislative tool. Moving from this, considering the impacts of the filibuster, this essay argued for its reform, focusing on three possible paths: (1) moving from dual-track to single track, (2) creating boundaries and limiting the filibuster’s use and, (3) lowering the threshold to invoke a motion for cloture. Regardless of the path taken to reform the filibuster, the fact is that this legislative device has become a menace to senatorial procedures and that it needs urgent attention. As such, law and policy makers in America should devote substantial attention to proposals from academics and think tanks who, for years now, have been formulating different avenues for the reform of this legislative device.
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