The filibuster – unlimited and unfettered debate on bills – has become a hallmark of Senate proceedings. This unique and somewhat perplexing aspect of Senatorial procedure is permitted by the Constitution, though it is not mentioned directly within the document. With few restrictions, the filibuster has, in practice, become a tool used by a dissenting minority to stall or kill a bill. For this reason, the filibuster has drawn both harsh criticism and unwavering support. When imagining the legislative branch, the Framers included the stipulation that, “Each house may determine the rules of its proceedings,” in Article I, Section 5 of the Constitutions. In Defending the Filibuster, authors, Richard Arenberg and Robert Dove, contend “The filibuster, although not created by the Framers themselves, grew out of the independent precedents and procedures evident in the Senate from the outset, which themselves grew out of the constitutional design for the Senate” (Arenberg, Dove, 3). While historical accounts vary, the House of Representatives and the Senate initially adopted “previous question motions,” which signal an immediate end to debate and subsequent vote. However, at Aaron Burr’s farewell address to the Senate in 1805, he implied that this rule be dropped given its infrequency of use. By 1806, the rule had been eliminated completely, yielding the floor to over two centuries of seemingly endless debate. Senate Rule XIX outlines debate guidelines and states, “The Presiding Officer shall recognize the Senator who shall first address him” and that “No Senator shall interrupt another Senator in debate without his consent” (Arenberg, Dove, 58). The authors argue, “This rule, combined with the absence in Senate rules of a “previous question motion,” a motion to end debate and vote on the matter before the body, assures that each senator has the privilege of unlimited debate and that the minority has leverage” (Arenberg, Dove, 58). The constitutional power of the Senate to create its own rules, combined with the absence of previous question motion, makes the filibuster possible. In order to defeat it, senators must work together to generate a supermajority of 60 votes to formally invoke cloture.
Despite its prevalence, filibustering is restricted on bills of reconciliation. In response to political corruption during the Nixon Era, the Congressional Budget Act of 1974 instructed both the House and the Senate to establish a budgetary outline each year to prevent spending discrepancies or budgetary missteps, now known as a budget resolution. Since the passage is essential to fiscal policy, “it was established with a fast-track process, referred to as “expedited procedures”” (Arenberg, Dove, 110). Such procedures limit debate to exactly 50 hours, imposing a serious change to the usual proceedings of the Senate floor. In line with budget resolutions is a second form of expedited legislation – budget reconciliation or reconciliation bills. What began as a tangential process to the budget resolution, reconciliations “[were] meant to be used as a minor mechanism at the end of the fiscal year to bring spending legislation passed in the interim into line with the budget resolution that had been passed the previous spring” (Arenberg, Dove, 111). Reconciliations are subject to a similar expedited process as resolutions, with debate limited to 20 hours and amendments only “germane in substance” (Arenberg, Dove, 111). Over the years, however, the use of the reconciliation process has become weaponized by the majority party as polarization has increased. Starting in the 1980s and still today, “The use (and abuse) of reconciliation [make] it possible for a partisan majority, acting alone without the minority, to pass sweeping legislation quickly. To make matters worse, the reconciliation process tightly restricted floor amendments with a strict germaneness rule. While the committees were free to pack reconciliation with all sorts of unrelated matters, senators’ amendments were constrained during consideration on the floor” (Arenberg, Dove 112). Here, the absence of the controversial filibuster has only served to create more potential turmoil on the Senate floor.
Proponents of the filibuster see the unconventional procedure as a way to curtail an aggressive and broad-sweeping majority agenda from passing through during times of a unified government. In this way, the minority party retains the right to sway legislation and generate bipartisan compromise and consensus. During the time of the Constitutional Convention, the Framers, fearing mob rule, intentionally created a Senate that was more deliberative and thus less susceptible to the shifting winds of public opinion. Dove and Arenberg propose, “When majorities have the strong support of public opinion, they may be overzealous in their demand for rash action. The Founders feared majorities that moved too quickly. The supermajority requirements imposed by the Senate rules for the most controversial issues provide a useful test of when a majority may be overzealous” (Arenberg, Dove, 153). Given that a cloture vote of three fifths is often required to pass controversial bills, the filibuster necessitates agreement across party lines, slowing down majority steamrolling and safeguarding dissenting, minority opinion.
Critics of the filibuster argue the obvious; the filibuster has now become an obstructionist tactic used by the minority party as a display of polarization and partisanship. Taking this a step further, the filibuster has historically been employed on matters related to race and the rights of marginalized groups. Senators have often used the filibuster as a way to maintain a current – and usually unjust – equilibrium. Zack Beauchamp of Vox explains, “The filibuster allows people who already have power to prevent changes to the political system. On civil rights issues, this effect almost always tends to redound to the benefit of people who want to preserve the racial status quo” (Beauchamp, 6). As delegates to the American population, filibustering bills that promote the general welfare seem not only wrong but unconstitutional. Senators who support reforming the process recount the times when segregationists used this tactic to stall anti-lynching legislation during the Civil Rights era. Today, many view this “Jim Crow relic” as a tool for conservatives to continue to deny minority rights in the eyes of the law, most recently in light of the recent voting restrictions in southern states that specifically target communities of color (Snell, 4). Overall, despite the practicality of this procedure in generating consensus among parties, the bigoted history and discriminatory use of the filibuster cannot be ignored.