Filibuster
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Filibuster
The topic I have chosen to write about is the filibuster. The filibuster is a very important and unique issue in American government. The filibuster is used in the Senate to slow up or derail bills. It is also used to block judicial nominees, threatened most recently to be used against Judge Alito. It is a very strong tool especially to the minority party. The minority can use it to make a point or to try and get their way. The filibuster may be very upsetting to the majority party but will be very important to them when they one day become the minority party.
The filibuster has come very far in its origin. The tern filibuster originally was someone that went around reeking havoc on people, most commonly pirates. In the middle of the nineteenth century many of these groups of people organized in the U.S. and went into Central America and the West Indies and started revolutions. These people became known in English as filibusters which was derived from the Spanish filibustero. In the early nineteenth century a senator named John Randolph from Virginia got in the habit of making long speeches on the Senate floor. The Senators soon got fed up with these long and irrelevant speeches and voted to give all right to the presiding officer to deal with such problems. This is when it gets interesting because in 1872 Schuyler Colfax, the Vice President, ruled that “under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senate considers pertinent to the pending issue”. This tactic soon became widely used in the Senate and was compared to military adventurers, or filibusterers. People began to say that a Senator was filibustering.(An Illustrated Approach)
Filibusters can be a very strong tool for the minority in the Senate. A Senator or his minority party can block full Senate consideration of a bill or a nomination by prolonged debate of the proposal. This is especially important to the Senate if there is only 50-59 Senators that are in favor of passing a bill. This is because of the rule of cloture. A filibuster can be ended in the Senate by a cloture vote which is 60 of the 100 Senators voting to end the filibuster and take the bill or nomination to a final vote. This is almost a check and balance sort of system within the Senate. The use of the filibuster by the minority party in the Senate ensures the minority party representation in the Senate. The majority party is not able to be as powerful with their doctrine and ideology as they want. This allows for all parties and hopefully all of the population a rather equal representation in the government. It also works a check and balance to the House of Representatives who has overruled the use of the filibuster. The reason being that a bill passed by the House must also go through the Senate. Do not get me wrong the power of numbers in the Senate is definitely a strong attribute but it is not an all powerful allowance to the majority party to do whatever they want. The filibuster is a tool not to just be thrown around lightly by the minority party however because at some point on down the line they will be the majority party and it could come back to hurt them. A lot of the time an actual filibuster does not have to be used by the minority however. The threat of the filibuster is sometimes enough to get the job done.
There are two major arguments about the filibuster. There is the constitutional argument against the filibuster and the constitutional argument for the filibuster. Both of the arguments are valid and can be made fairly easily. The first I will talk about is the argument against the constitutionality of the filibuster. The argument is all about the supermajority requirements in the constitution. The constitution is very specific about the rule of a supermajority. One such case is in the case of an override of a presidential veto. The constitution requires a 2/3 majority of each house to override it. Another example is the requirement of 2/3 majority of the Senate to convict and remove an officer of the United States who has been impeached. The constitution uses the rule of supermajority in seven different instances. The argument then made against the filibuster is that it is not one of these instances. They say that the drafters of the constitution in very detailed manner told when the use of a supermajority is needed and the filibuster is not one, therefore there is no supermajority needed to end floor debate in the senate which would change the cloture vote to a simple majority vote. Here in lies the argument against the constitutionality of the filibuster. By not including the Senate cloture vote they have, according to this argument excluded this rule. The constitution on the subject of supermajority gives an exhaustive list that the cloture vote is not on.(Amar)
The other side of the argument is also a very good argument. The argument for the filibusters constitutionality is a little easier to explain I believe. The argument here is that a list such as the constitutions list of situations in which a supermajority is to be used is not an exhaustive list of situations but rather an example. The situations cited in the constitution where a supermajority is needed is not necessarily the only time that one is needed. Another piece of the argument for the filibusters constitutionality is found in Article I, section 5 of the constitution. This section in the constitution anticipates that the House and the Senate will make their own rules beyond that of the constitution. It specifically gives them the right to do so: “Each House may determine the rules of its proceedings.” And with this in mind isnt the filibuster and cloture vote rules exactly this type of rule. The filibuster and cloture vote rule are found in the Senate rules. These are, depending on which way you look at it, procedural rules. They are procedural rules because of the fact that when a filibuster is going on that a vote of cloture is needed to end the debate which is a “procedural occurrence” which would fall into the determining of “rules of its proceedings”. The last argument to make for the filibuster is its tradition. Most constitutional analyst and Senators are afraid to disturb a tradition that has such historical background and also a rich future when at some point they