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Debate: Filibuster

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Is the filibuster a valuable tool in government, or should it be abandoned?

Background and context

A filibuster, or "talking out a bill", is a form of obstruction in a legislature or other decision-making body. An attempt is made to extend indefinitely a debate upon a proposal in order to delay the progress or completely prevent a vote on the proposal taking place.[1]

The term filibuster was first used in 1851. It was derived from the Spanish filibustero meaning pirate or freebooter. This term had in turn evolved from the French word flibustier, which itself evolved from the Dutch vrijbuiter (freebooter). This term was applied at the time to American adventurers, mostly from Southern states, who sought to overthrow the governments of Central American states, and was transferred to the users of the filibuster, seen as a tactic for pirating or hijacking debate.[2]

Tactics akin to the Filibuster existed in Ancient Rome, and have found a place in the governments of the United Kingdom, France, Canada, and the United States. In recent decades, the filibuster has become increasingly common in the United States as a legislative tool for opponents of pieces of legislation or of executive appointments that require confirmation by the Senate. While filibusters were not used very frequently in most of the 19th and 20th centuries, they became more commonly used by opponents of the civil rights movement in the 50s and 60s, and became even more common during the Clinton administration by a Republican Congress that was intent on blocking a number of the President's initiatives.

In order to over-come a filibuster and end debate ("cloture"), the Senate must have 60 votes in favor of a piece of legislation or a nominee (or a "filibuster proof majority"). While this puts limits on the power of the filibuster, the power of the filibuster is that it forces supporters of a piece of legislation to accumulate sixty votes, which is challenging. Many wonder whether this is a perversion of the original intent of majority-rule governance in the Senate. This question became particularly relevant in July 2009, as Al Franken was elected the 60th Democrat in the Senate, thus completing a "filibuster proof majority" for the Democrats (assuming all Democrats vote together on a bill). This, and the general increased use of the filibuster since the 90s have elevated the debate to a new prominence in the US and internationally.

See Wikipedia's article on the filibuster for more background.

Contents

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Minority rights: Does the filibuster help uphold minority rights? Is this good?

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Pro

  • Filibuster blocks small majorities ramming through unpopular laws Brien Jackson. "In Defense of the Filibuster". Below the Fold. February 17th, 2009: "having the filibuster as an option still restricts a relatively small majority that may not even acurrately reflect the will of the electorate from ramming through unpopular aspects of their agenda. [...] The most picture-perfect argument for the Senate is, ironically, that old bugaboo, the 2000 election. Until Jim Jeffords bailed on the GOP, Republicans controlled the House by 9 votes, had the majority of a 50-50 Senate split based on the tiebreaking vote of the Vice-President, and, of course, had control of the White House despite getting fewer votes for the office than the Democratic candidate. Additionally, they lost seats in both houses of Congress in 2000, including 4 in the Senate. Is there any real argument that this unified government was the result of the country’s overwhelming preference for the GOP agenda? Obviously not." It should be noted that this argument has less to do with minority rights than actually preserving what might be a slight majority view in the public, but which is not shared and supported by a majority of the people's representatives.


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Con

  • Filibuster wrongly burdens majority party Randy Barnett, one of the burgeoning field of Volokh conspirators, argued against the filibuster on the following grounds: "The contemporary filibuster is a polite affair. Charles Schumer does not talk through the night, bleary eyed and exhausted. Why not? Couldn’t the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business. [Emphasis added.] No modern filibuster has been broken by the 24/7 option. For more on this, see my post entitled Update on Filibusters."[3]


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Constitutionality: Is the filibuster consistent with the US Constitution?

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Pro


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Con

  • The US Constitution makes no provision for the filibuster It is true that Senate rules provide provision for the Filibuster. But, these rules are not established in the Constitution. The Constitution only provides the authority to the Senate to establish such rules. This in no way means that the filibuster is protected by the Constitution, as is a very common misconception about the filibuster. The Senate is free, therefore, to vote to change the rules of the Senate and abolish the filibuster without amending the Constitution in any way. Getting rid of the filibuster is, therefore, much easier than many supporters of the filibuster often argue.
  • Filibuster perverts rules meant to promote debate Ezra Klein. "Debate the filibuster. The filibuster would want it that way." The American Prospect. February 17th, 2009: "The filibuster is a byproduct of the Senate's right to unlimited debate. The idea was that the Senate would be a body of reasoned deliberation. The rule was meant to promote argument, not require super majorities. Indeed, it wasn't until Woodrow Wilson that the Senate could even vote down a senator trying to talk a bill to death. They changed the rules because the right to unlimited debate had changed: It had been transformed from a guardian of democratic deliberation into a tool for undemocratic obstruction. [...] So get rid of the filibuster. Now that the filibuster doesn't even require excess speech, it's come completely unmoored from the right to unlimited debate."


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Tradition: Does filibuster fit with US traditions, intentions of Framers?

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Pro


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Con

  • Filibuster has been restricted; not enshrined in tradition The Filibuster has been consistently restricted through US history, in 1917 with the cloture rule and, in 1975, with the reduction of the number of votes required to end a filibuster from 67 to 60. This demonstrates that the Filibuster is not enshrined in tradition, can be changed, and can even be gotten rid of.
  • The term "filibuster" reflects its historic infamy The term "filibuster" comes from words describing pirates and vigilantes, and was meant to convey the idea of "hijacking" debate and the functions of Congress. It should now be given such infamy, and be abandoned.
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Legislative process: Is the filibuster valuable to the legislative process?

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Pro

  • Filibuster provides important checks and balances Ralph Neas, president of People for the American Way, which took the lead in opposing John Ashcroft's appointment to the Supreme Court. "Regardless of who's in charge of the Senate, I would never advocate doing away with the filibuster. It's one of the few checks and balances left in the system."[4]


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Con

  • Filibuster hamstrings the productive passage of legislation Elliot Richardson. "The Case Against the Senate Filibuster". 2005: "If the Senate operated by majority rule, Congress would have passed a campaign finance reform law last year. It also would have adopted the first major telecommunications reform law in 50 years, reined in the giveaway of taxpayer-owned gold to private mining companies and perhaps adopted a compromise health-care reform. [...] Each of these bills was killed in Congress because a filibuster frenzy has made majority rule the exception rather than the rule in the Senate. Filibusters also took place on school funding, toxic-waste cleanup and other legislation."


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Presidential nominees: Is filibustering presidential nominees ever appropriate?

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Pro


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Con

  • Filibustering presidential nominees violates balance of powers William Kristol. "Break the Filibuster". The Weekly Standard. May 9th, 2005: "There is no rationale for a filibuster, however, when the Senate is acting under Article 2 in advising and consenting to presidential nominations. As Crockett points out, here the president is 'the originator and prime mover. If he wants to make the process more burdensome, perhaps through lengthy interviews or extraordinary background checks, he can.' The Senate's role is to accept or reject the president's nominees, just as the president has a responsibility to accept or reject a bill approved by both houses of Congress. There he does not have the option of delay. Nor should Congress have the option of delay in what is fundamentally an executive function of filling the nonelected positions in the federal government. In other words--to quote Crockett once more-- it is inappropriate for the Senate to employ a delaying tactic normally used in internal business--the construction of legislation--in a nonlegislative procedure that originates in a coequal branch of government."


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Reform: Is reforming the filibuster possible, or is getting rid of it needed?

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Pro

  • Eliminating filibuster is excessive; reforms are sufficient. There are many possible reforms of the filibuster that address many of the concerns raised by opponents to it. Putting the onus on the filibustering party to be present during a filibuster, instead of the majority party is one proposed reform. Lowering the number of the number of a "filibuster-proof" majority from 60 to 55, or so, is another proposed method. Collectively, such reforms are perhaps a better way of eliminating any negative elements of the filibuster, while avoiding the difficult process of amending the Constitution to get rid of it. And, this suggests that abandoning the filibuster is an excessive measure. Reforming it is sufficient.


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Con

  • Reforming the filibuster is a band-aid; it needs to be abandoned. All approaches to reforming the filibuster do not fully address the problem, and simply act as a band-aid to the larger problem.
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General: Quotes from persons/orgs generally for or against filibusters

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Pro

  • General statements in favor of the filibuster Ralph Neas, president of People for the American Way, which took the lead in opposing John Ashcroft's appointment to the Supreme Court. "Regardless of who's in charge of the Senate, I would never advocate doing away with the filibuster," he said. "It's one of the few checks and balances left in the system."[5]


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Con

  • General statements against the filibuster "The Senate and the Filibuster--Posner". The Becker Posner Blog. July 5, 2009: "The filibuster is an incomprehensible device of government. A supermajority rule, whether it is the rule of unanimity in criminal jury trials or the supermajority rules for amending the Constitution, makes sense when the cost of a false positive (convicting an innocent person, or making an unsound amendment to the Constitution) substantially exceeds the cost of a false negative. But it is hard to see the applicability of that principle to Senate voting, given the other barriers to enacting legislation."


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Pro/con sources

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Con


See also

External links and resources

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