In this video from The Federalist society and co-sponsored by the Article I Initiative, Senator Mike Lee (Utah) explores the evolution of the filibuster and its use in the Senate.
In the 1939 classic Mr. Smith Goes to Washington, the fictional Senator Jefferson Smith filibusters on the floor of the Senate for 25 hours in order to delay a bill and block a graft scheme. Mr. Smith ended his filibuster by collapsing in a faint.
Though actual filibusters tend to be far less dramatic, they are still regularly utilized by senators to extend debate, block legislation, delay a vote, or achieve legislative consensus. But has the filibuster always been used this way?
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The purpose of the filibuster is to contribute to the Senate status as being the world’s greatest deliberative legislative body. The filibuster is a rule that allows for indefinite debate in the United States Senate. Anyone can debate a bill as long as they wanted to pay the bill, that is until 3/5 of the members of the Senate vote to end debate through a mechanism called cloture.
In one form or another the filibuster has always existed in the Senate. Senators have the right to speak indefinitely and to extend debate as long as any one Senator chose. The filibuster is certainly an important part of the Senate history and a part of its rule. It’s supposed to be a different kind of legislative body one in which extended unlimited debate is the norm.
From its beginning the Senate was a place where any one Senator could continue the debate on the legislative proposal as long as he or she chose and the final question on a legislative matter who was achieved only by unanimous consent. This required Senators to do the hard work of actually being on the senate floor and continuing debate.
Just a little over a hundred years ago, I believe it was in 1917, the Senate adopted it’s first cloture mechanism. Originally cloture required two-thirds supermajority. And a few decades ago that was changed again to bring it to where it is now on a rule 22, which is the three-fifths of the senators, or 60 out of a 100, can vote to bring debate to a close. But the underlying principle has remained essentially the same throughout the history of the Senate. The crux of the controversy surrounding the filibuster really relates to the abuse of the process to bring about the delay and to avoid debate, rather than using the filibuster to fulfill its intended purpose which is to extend and promote debate.
Article 1 of the Constitution is clear in giving each house of Congress the authority to develop its own rules of procedure. Now whether or not it’s used entirely in a manner consistent with the Constitution may be a different question. Some people have started to conflate the question of how many votes it takes to end debate with how many votes it takes to pass a legislative measure. Part of this is due to a misunderstanding of how the senate rules have been used, part of this is due to an abuse of the filibuster mechanism over time. It’s become more controversial as it has been more routinely invoked, and even more controversial as it has become routinely invoked for the purpose of delay rather than for the purpose of extending actual debate. When members see it as simply a delay mechanism, uh, or an impediment to actual debate, it undercuts the very purpose for which it was created.
When it becomes the norm and people just start to anticipate that you have to have 60 votes to pass anything, it starts to appear unconstitutional. That’s really not the case. It take 60 votes to close debate. There are other ways of bringing debate to a close.
The filibuster if used properly pushes the Senate towards legislative consensus. That’s the whole idea behind it is to bring people together, and to allow members to state, their objections, to offer up improvements and eventually to get to the where they decide further debate isn’t necessary. It’s served our nation well, and I think it has for most of the history of our Republic, done what it was supposed to do.