Filibuster

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Now rarely used outside the United States Senate, the filibuster has played a key role in the enactment of federal law since 1789. Amply protected by custom and the formal rules of Senate procedure, the practice is seen by some as the ultimate expression of free speech and by others as a capricious assault on democratic rule. We present here a review of filibusters in the American past.

The filibuster is undoubtedly the clearest demonstration of raw political power in all of American government. The most formidable weapon in the legislative arsenal, it strikes directly at the concept of majority rule that lies near the heart of the democratic process. It permits a single legislator—or a determined minority acting in concert—literally to talk a bill to death and, through various parliamentary maneuvers, to extort concessions that effectively thwart the majority’s will. Once invoked, it can bring lawmaking to a standstill in the United States Senate and, on occasion, in the House of Representatives as well.

Since 1789 filibusters have been used to delay, modify, or defeat entirely a broad range of legislation, much of which was backed by substantial majorities in Congress. Included in the list are such matters as the choice of the site of the nation’s capital, various tariff reforms in the nineteenth century, regulatory laws directed against monopolies and trusts, and a number of New Deal social-welfare programs. For more than fifty years in this century the existence of the filibuster precluded the passage of any effective civil-rights legislation governing the franchise, schooling, housing, recreation, and employment.

In the last ten years alone there have been at least thirty-seven major filibusters in the Senate against such measures as campaign-spending reform, open housing, and the establishment of a consumer-protection agency of cabinet rank. Since January of this year the threat of minority delay has slowed or prevented the introduction of critical economic and social legislation and prolonged resolution of a disputed New Hampshire senatorial election.

At a time when the American public is increasingly restive at the inability of Congress to act in the face of seemingly overwhelming problems, the periodic delays resulting from the filibuster’s use are taken as the primary example of the legislature’s inordinate dependence on outmoded ways and as evidence of its failure to meet its constitutional responsibilities. Not unexpectedly, the charges are not new. For more than a hundred years now members of Congress, editorial writers, and scholars have regularly assailed the filibuster as an impediment to good government, but still it survives—virtually unhindered in the Senate and only narrowly contained in the House—a relic from a distant and perhaps less complicated past.

The filibuster probably originated with the first representative assembly and, like lobbying, existed in form long before a word had been coined to describe it. (In its original American usage the word filibuster was applied to American adventurers of the mid-nineteenth century who had gone into Mexico and other Latin-American states to foment insurrections; its current usage in politics dates from about 1853.) There are references in Greek and Roman literature, for example, to persistent obstructionists who troubled the Athenian assembly and the Roman senate with dilatory motions and lengthy speeches. The same tactics carried over to the modern legislative bodies that took shape in Europe during the late Middle Ages.

When the Founding Fathers gathered in Philadelphia in 1787 to draft the Constitution, they were well acquainted with obstructionism, but the prospect of filibustering in Congress was not a primary concern. The debate on the subject was extremely brief—perhaps no more than an hour—and centered on the two chief weapons of obstruction that had been most commonly employed in the colonial assemblies. The first was quorum breaking, where dissident members would simply leave the legislative chamber in sufficient numbers to prevent a lawful vote. The second was a maneuver inherited from the English Parliament and the Continental Congress and apparently in regular use in Massachusetts: persistent demands for a calling of the roll, often initiated by a single legislator and, though clearly aimed at delaying the assembly’s business, disguised as a proper parliamentary request to establish the presence of a quorum or to move a seemingly endless list of amendments to the principal measure on the floor.

The drafters disposed of both tactics in Article i, Section 5 of the Constitution, placing a check on quorum breaking by authorizing each house to establish procedures “to compel the Attendance of absent Members” and restricting the mandatory call for “the Yeas and Nays” to a minimum of “one fifth of those Present” in each house. But this was as specific as they chose to be; all other parliamentary rules were to be determined separately by the House and Senate once the government got under way.

For some unknown reason the Founding Fathers took no notice of long-windedness as a filibustering device, and they seemed to have little fear that a minority might one day attempt to bend the majority to its will. If anything, their apprehensions lay in the other direction. The central question of constitution making as they saw it was how to control the excesses or tyranny of the majority. For days on end they heatedly argued the point and strove to find adequate checks to protect minority rights.