Malcolm Rivera
The filibuster is a congressional norm that is not mentioned in the US Constitution. It is a procedural tactic used in the Senate to delay or block a vote on legislation or confirmation by requiring a supermajority (60-vote) threshold to pass a bill. While it only became theoretically possible through a change in Senate rules in 1806, it has gained prominence in recent years, often slowing down the legislative process. Some legal scholars argue that the filibuster may not be constitutional, and there have been growing calls for its elimination or reform to prevent it from impeding democratic progress and civil rights legislation.
| Characteristics | Values |
|---|---|
| Mentioned in the Constitution | No |
| Origin | A change of Senate rules in 1806 |
| First use | 1837 |
| Exemptions | Presidential appointments, Supreme Court appointments |
| Minimum votes needed to pass a law | 60 |
| Calls for elimination | Growing louder |
| Reasoning for elimination | Impeding expansion of American democracy and rights of eligible voters |
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What You'll Learn
The filibuster's historical complicity in perpetuating Jim Crow laws
The filibuster is a congressional norm that is not mentioned in the US Constitution. It has been used to block civil rights legislation and has had a troubling legacy in perpetuating racial discrimination. This is especially true during the Jim Crow era, where it was one of the primary uses of the filibuster.
The Jim Crow laws were state and local laws introduced in the Southern United States in the late 19th and early 20th centuries that enforced racial segregation. The laws were enacted by white-dominated state legislatures to disenfranchise and remove the political and economic gains made by African Americans during the Reconstruction era. The laws mandated racial segregation in all public facilities in the states of the former Confederate States of America and some others, beginning in the 1870s. The US Supreme Court upheld these laws in 1896 in the case of Plessy v. Ferguson, laying out a "'separate but equal' doctrine for facilities for African Americans. However, in practice, the facilities for African Americans were inferior and underfunded, and the body of law institutionalized economic, educational, political and social disadvantages for most African Americans.
The enactment of Rule XXII in 1917 gave rise to the modern filibuster, which was used to block civil rights legislation during the Jim Crow era. Filibusters blocked measures such as anti-lynching bills proposed in 1922 and 1935, the Civil Rights Act of 1957, and legislation that would have prohibited poll taxes and outlawed discrimination in employment, housing, and voting. The use of the filibuster to block civil rights legislation was not limited to the Jim Crow era, however. Even after the National Association for the Advancement of Colored People (NAACP) was founded in 1909 and began protesting and campaigning against Jim Crow laws, the filibuster continued to be used to block civil rights advances. For example, southern congressmen blocked any legislation proposed by the Kennedy administration, including a comprehensive civil rights bill.
It took until 1964 for the Civil Rights Act to pass, and the Voting Rights Act was passed in 1965, finally overturning the remaining Jim Crow laws. In both cases, the bills' proponents had to secure a large number of votes to overcome the filibuster and pass the legislation.
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The constitutionality of the filibuster
The filibuster is a procedural tactic used by senators to delay or block a vote on legislation or confirmations by continuously debating the topic. It is not mentioned in the US Constitution and only became possible with a change in Senate rules in 1806, with the first use of the filibuster occurring in 1837.
Some legal scholars argue that the filibuster may not be constitutional, citing Article I, Section 5, which states that "a majority of each House shall constitute a quorum to do business". The filibuster has been criticised for impeding the legislative process and for its historical complicity in perpetuating Jim Crow laws and blocking civil rights and voting legislation.
However, others argue that the filibuster is consistent with the spirit on which the US government was formed, as outlined by James Madison in "Federalist No. 10", where he discusses the dangers of mob rule and the ways the government was structured to prevent it. The filibuster, it is argued, acts as a check on power within the first branch of government.
Calls for eliminating or reforming the filibuster have grown louder, especially as it has been used more frequently in recent years, often slowing down the business of the chamber. In 1917, the Senate passed Rule XXII, or the cloture rule, which allows a filibuster to be broken with a two-thirds majority. This requirement was reduced to 60 votes in 1975, which has become the effective minimum for passing legislation.
The filibuster can be eliminated or modified through a rule change, which would require a two-thirds supermajority, or through the "nuclear option", where the Senate majority leader uses a non-debatable motion to bring a bill for a vote and then raises a point of order that cloture can be invoked with a simple majority.
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The legislative process and filibuster
The legislative process in the US has long been a source of frustration for many in Congress and beyond. The filibuster, a procedural tactic not mentioned in the Constitution, has been a particular source of contention. A filibuster is used to delay or block a vote on a piece of legislation or confirmation by requiring a supermajority to pass. While the filibuster is not explicitly outlined in the US Constitution, it became theoretically possible following a change in Senate rules in 1806 and was first used in 1837. Over the years, its use has escalated, often bringing business in the chamber to a halt.
The Senate traditionally reserved the filibuster for the most controversial issues. However, in recent years, its use has become more frequent, leading to calls for its elimination or reform. Some argue that the filibuster has been complicit in perpetuating Jim Crow laws and blocking civil rights and voting legislation. In 1917, the Senate passed Rule XXII, or the cloture rule, which allowed for a filibuster to be broken with a two-thirds majority. This requirement was reduced to 60 votes in 1975, which has effectively become the minimum needed to pass a law.
There have been attempts to eliminate or circumvent the filibuster. In 2013, the Democratic-controlled Senate voted to require only a majority vote to end a filibuster of executive and judicial nominees, excluding Supreme Court nominees. In 2017, the Republican-controlled Senate extended this to include Supreme Court nominees as well. The "nuclear option" is another way to eliminate the filibuster, where the Senate majority leader uses a non-debatable motion to bring a bill for a vote and then raises a point of order that cloture can be invoked with a simple majority.
While some call for its elimination, others argue that the filibuster is an essential check on power within the first branch of government. James Madison, in "Federalist No. 10," outlined the dangers of mob rule and the importance of structuring the government to prevent it. The filibuster, while frustrating to some, can help prevent hasty and inconsiderate proceedings, as the Senate is meant to "stop, deliberate, ponder and amend legislation more cautiously than the House."
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Calls for eliminating the filibuster
The filibuster is a congressional norm that is not mentioned in the US Constitution. It is a practice in the US Senate that allows senators to extend legislative debate to prevent a measure from being brought to a vote. While defenders of the filibuster argue that it prevents the majority from exercising unchecked power, critics highlight its negative impact on democracy and its use as a tool of obstruction.
The filibuster's role in perpetuating Jim Crow laws and impeding racial equality has also fueled demands for its elimination. Former President Barack Obama denounced the filibuster as a "Jim Crow relic" at the funeral of civil rights leader and congressman John Lewis. Obama reiterated his stance in 2018, stating that the filibuster makes the country ungovernable and must be eliminated.
Additionally, the filibuster has been criticized for enabling the advancement of partisan priorities. For example, Mitch McConnell eliminated the filibuster for Supreme Court justice confirmations to appoint conservative justices. This selective application of the filibuster has been characterized as an "undemocratic power grab."
Proponents of eliminating the filibuster argue that it is necessary to enact bold structural reforms. They advocate for consistent pressure from constituents, voters, and civil society organizations to demand its elimination from their representatives. While some suggest changing Senate rules to eliminate the filibuster, others propose employing the "nuclear option," which allows the Senate majority leader to bring a bill to a vote with a simple majority.
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Exemptions to the filibuster rule
The filibuster is a tactic used in the United States Senate to delay or block a vote on a measure by preventing debate on it from ending. While the Senate's rules place few restrictions on debate, certain exemptions to the filibuster rule have been established over time.
One notable exemption is the cloture process, which allows the Senate to end debate on a bill and proceed to a vote. In 1917, the Senate adopted a rule that allowed for cloture with a two-thirds majority vote, removing the ability to filibuster indefinitely. This threshold was changed in 1949 to require a two-thirds vote of all senators duly chosen and sworn, and further amended in 1959 to require a two-thirds vote of senators present and voting. In 1975, the Senate reduced the cloture threshold to three-fifths of all senators (60 votes), where it stands today.
Another exemption to the filibuster rule is the Congressional Budget Act's budget reconciliation process, which allows for the enactment of significant agenda items without the threat of a filibuster. Additionally, certain types of legislation, such as impeachment proceedings, the Congressional Review Act, the Electoral Count Act, and the War Powers Act, are exempt from filibuster and have specific rules governing their debate and passage.
In recent years, there have been calls to create further exemptions to the filibuster, particularly for voting rights and election reform legislation. Advocates argue that these issues are too important to be blocked by the filibuster, which gives the minority party the power to prevent a vote on a bill. However, others oppose any changes to the filibuster rules, arguing that it is an important tactic for the minority party to have a say in the legislative process.
While some propose eliminating the filibuster altogether, others suggest creating specific exemptions for certain types of legislation, such as voting rights and civil rights measures. The debate over exemptions to the filibuster rule highlights the complex nature of the legislative process in the United States Senate and the ongoing efforts to balance the interests of the majority and minority parties.
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Frequently asked questions
Yes, the filibuster is a congressional norm.
No, the filibuster is not mentioned in the constitution. It only became possible with a change of Senate rules in 1806 and was first used in 1837.
Yes, changing Senate rules, particularly Rule XXII, would eliminate the filibuster. However, this would require a two-thirds supermajority. Alternatively, the nuclear option could be used, where the Senate majority leader uses a non-debatable motion to bring a bill for a vote and then raises a point of order that cloture can be invoked with a simple majority.
The filibuster has been used to block or delay civil rights legislation and voting reforms, perpetuating Jim Crow laws and thwarting efforts to address racial discrimination. It has also slowed down the legislative process, preventing meaningful reforms on issues such as healthcare, climate change, and gun control.
