Prior to a bill being passed into law by the Senate, it is brought up for debate. During the debate, the U.S. Senate rules allow a senator (or a series of senators) to speak for as long as they wish, and on whatever they wish, and the bill cannot be voted on until debate has ended. A senator or senators can, then, speak for an extended period of time with the sole purpose of preventing a vote on the bill and/or refuse to vote to end the debate. This obstructive tactic, known as the filibuster, isn’t part of the Constitution but an inadvertent result of an 1806 rule change.
The filibuster was memorialized by Jimmy Stewart in Mr. Smith Goes to Washington. Outside of Hollywood, Strom Thurmond holds the record for longest filibuster (24:18), in an attempt to derail Civil Rights legislation.
The debate can be brought to a close by a vote by “three-fifths of the Senators duly chosen and sworn” (currently 60 out of 100) to invoke cloture (Senate Rule XXII). As a result, the filibuster is most often used by the minority party to prevent the passage of a bill that has the majority support — 51 votes — required but not enough to invoke cloture and break the filibuster. In our day, filibusters have become “normalized” to the point that “it is largely the case that the contemporary Senate has morphed into a 60-vote institution — the new normal for approving measures or matters — a fundamental transformation from earlier eras.” The Senate has, however, adopted rules to prevent filibusters when voting on budgets and nominations.
Those frustrated with the filibuster sometimes propose the “nuclear option” — a series of procedures that allows the Senate to override a standing Senate rule — including the 60-vote rule to close debate — by a simple majority of 51 votes. Essentially, if a majority of senators is willing to agree to the fiction that the 60-vote requirement for cloture really means 51 votes, the filibuster can be broken without the three-fifths majority the Senate rules technically require. The nuclear option is to be a “last-resort, break-in-case-of-emergency way for the majority party in the Senate to overcome obstruction by the minority.” But its recent use — twice in the last decade, once by each party — brings into question the “last-resort” characterization.
Because the filibuster is generally a tool of whichever party is not in power, whether one of the two major parties supports the filibuster is frequently a question of context: “Parties in power are often eager to dump the tool to make it easier to pass legislation while those in the minority are usually eager to keep it.” This is occurring now, as Mitch McConnell (R-KY), the new Senate minority leader, refuses to cooperate in organizing the Senate unless Democrats promise not to gut the filibuster.
History
The filibuster was used infrequently in the first two hundred years of our nation. There has been a clear spike in its use (and the subsequent use of cloture) over the past 50 years and particularly the past 20 years. This image draws on data from the U.S. Senate and shows the drastic increase of filibuster and cloture usage in recent years.
Effects, Advantages, and Disadvantages of the Filibuster
The modern-era filibuster — and the effective 60-vote supermajority requirement it has spawned — have impacted all branches of the federal government.
Congress
Supporters of the filibuster argue that “the Senate has a long tradition of requiring broad support to do business, due in part to the threat of the filibuster, and that this protects the minority.” In other words, because a filibuster can only be broken with a supermajority, in order for a bill to pass the Senate there has to be close to 60 or more Senators who are likely to support it. Thus, the concerns of the minority are more likely to be taken into account to ensure the necessary broad support for the bill.
On the other hand, the supermajority requirement has made it difficult if not impossible for Congress to pass any but the most non-controversial legislation. Consequently, public approval for Congress as an institution has “fallen to its lowest levels ever, with large segments of the public seeing the institution as ineffective.”
Presidency
This policymaking vacuum is increasingly filled by the use of executive power. Recently presidents of both parties have used executive orders in areas that were traditionally handled through legislation. “As a result, policy in these areas is increasingly determined by executive preference, and is more easily changed after elections, rather than through more permanent legislative policy.”
This weakening of the legislative branch upsets the checks and balances and is of questionable constitutionality. Because Congress is failing to legislate, the president is increasingly stepping in and arguably — even probably — violating the Constitution’s separation of powers.
Judiciary
In 2007, U.S. Solicitor General Paul Clement argued that the Supreme Court’s caseload was diminishing and that this was likely “a reflection of a preceding fall-off in new legislation by Congress…. Fewer new laws mean fewer lawsuits challenging or seeking clarification of new legislation.”
At the same time, certain policy issues are being “resolved judicially without action by Congress — despite the existence of potential simple majority support in the Senate.” This has been the case in terms of abortion, same-sex marriage, protections for “dreamers,” and the “Muslim ban.” These patterns also speak to a Constitutionally concerning weakening of the legislative branch in relation to its other co-equal branches.
Consider
MWEG Principle of Ethical Government 1(e) says: “Government institutions and political norms that promote deliberation, reduce polarization, and stimulate compromise among competing perspectives should be safeguarded and, where lacking, adopted (see 3 Nephi 7:1-6 and 4 Nephi 1:15-17).”
Consider whether you think the increased use of the filibuster promotes or diminishes effective government, compromise, deliberation, and reduced polarization.
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