The Filibuster Debate

By David Boyer

12/1/13

Game Theory and Democracy

Professor H. Bray

SummaryThe idea of a filibuster has been around since the beginning of Congress. A filibuster

is a way to stall or delay the actions of a legislative body. For the US, the filibuster is mainly used within the Senate. At the beginning of its creation, it was decided that it would be too hard to have a filibuster action within the House of Representatives due to its size (“Filibuster and Cloture” n.d.); although, because of its size, the filibuster could be effectively used in the Senate.

In 1806 Aaron Burr brought the filibuster to the Senate, but it was not until 1837 that it was first used. In 1841 there was a defining moment for the filibuster. Henry Clay tried and failed to take away the senators right to filibuster by saying that a simple majority of 51 votes could end debate and bring a bill to a vote (“Filibuster and Cloture” n.d.). The use of filibusters continuously increased over the years, but in 1917 the Senate rules changed. The Senate introduced the cloture, which was a way for senators to end a filibuster with a certain number of votes. At that time a two-thirds majority could end debate, and bring the bill to a vote. The first time this was used was in 1919, and for the next forty-six years it was only used four times (“The Evolution of the Senate Filibuster” 2013). In the years surrounding the Civil Rights Movement, Southern senators abused the use of the filibuster to ensure that not civil rights bills would get passed. Because 67 votes were required to end a filibuster, the Southern senators had quite a bit of power. In 1975 the Senate again changed its rules and made it so 60 votes were required to end a filibuster.

When the first filibuster was introduced a senator would hold the floor and talk for as long as he wanted to delay a vote. For many years this was the method of filibustering. By the time 1917 rolled around and the introduction of the cloture evolved, the public and senators perceived filibustering as a serious problem within the Senate (Chemerinsky and Fisk 1996). One of the main reasons that the first cloture rule was adopted pertained to the actions in the Senate in early March 1917. President Wilson proposed to arm merchant ships to defend against the German U-Boats during World War I, but due to a small group of senators the bill proposed at the time did not come to a vote in the Senate. President Wilson had this to say about the filibuster,

More than 500 of the 530 members of the two houses were ready and anxious to act; … but the Senate was unable to act because a little group of eleven senators had determined that it should not. (Chemerinsky and Fisk 1996).

With this and the numerous filibusters during the civil rights era, it became clear to everyone that something needed to change with the Senate Process.

In the late 1970’s the then Majority Leader Mike Mansfield created a two-track system. This was very popular among the senators because it favored both the minority and the majority. The two-track system allowed the Senate to cover the filibustered legislation in the morning and other bills in the afternoon. This eventually led to the silent filibuster, which was a process that made it so filibustered bills, did not have to come to the floor.

In the debate of the filibuster, many have said that it goes against the democratic principle of a majoritarian democracy, and that it goes against the constitution. However, it is not a hundred percent clear that the principle of majority rule is so obviously grounded in the language of the Constitution. Moreover, there are good reasons why the filibuster might make sense even in a system of government founded on the principle of majority rule. For instance, in order to change the constitution you need more than a simple majority.

On November 21, 2013 the filibuster rule was changed so that all presidential nominations (besides those to the US Supreme Court) only needed 51 senatorial votes. There are many different schools of thought about this alteration, but only time will tell if this was a true democratic change.

The History of the Filibuster in the United StatesIt was not until 1806 that the filibuster came into play for the United States Senate.

First, in order to understand the history and the debate over filibusters, you have to understand what it is. For the US Senate a filibuster is a way to stall legislative actions in order to delay a vote (“Filibuster and Cloture” n.d.). In more recent years it has been primarily used to prevent a vote on a bill, or on a presidential nomination.

In 1806 the then current vice president, Aaron Burr, motioned for a filibuster type action, and in the same year the Senate agreed with Burr’s motion. The Senate did not create an alternative option for delaying or blocking legislative action, and thus the filibuster was born. For over thirty years the filibuster remained a theoretical option, because no senator felt the need to exercise its use. It wasn’t until 1837 that the filibuster was first used in the United States Senate. The Federal government decided that the filibuster was only a viable option for the Senate and not the House of Representatives, simply due to the size of the house (“Filibuster and Cloture” n.d.).

The first defining moment in the history of the filibuster came 35 years after the idea was introduced in the Senate. In 1841 a bill regarding the Second Bank of the United States came to the chamber. The Democratic minority hoped to block the bill by using a filibuster. Henry Clay tried to stop debate over the bill by using a simple majority (fifty percent), and thus changing the Senate rules that were in place. Clay’s motion was thwarted by senators saying that it stifled the Senate’s right to unlimited debate (“Filibuster and Cloture” n.d.). With the way the filibuster was set up the delay could go on forever and no vote would happen. It was not until 1917 that the Senate rules were changed in order to put in a place a way to stop a filibuster. President Woodrow Wilson urged the Senate to change the rules so that a two-thirds majority (67 senator votes) could end a filibuster, and bring the topic on the floor to a vote (“Filibuster and Cloture” n.d.). This device was known as a cloture. This first time that this new Senate rule was put to use occurred in 1919 when the Senate was discussing the Treaty of Versailles. In the next forty-six years that followed there were only four clotures that were used in the senate (“The Evolution of the Senate Filibuster” 2013).

In the years surrounding the Civil Rights Act of 1964 Southern Senators utilized their filibuster power to great extent. Due to the fact that 67 votes were required to stop the filibuster, it became difficult to end each one. In order to finally bring the Civil Rights Act of 1964 to a vote, the majority first had to end one of the longest filibusters in history. They were finally able to enact a cloture to bring the bill to a vote, and pass it. This led to a change in the cloture rule; in 1975 the Senate changed the required majority to end a filibuster to three-fifths (60 votes) (Howard 2010). For many years this rule has stayed the same, but how, what and how often senators use the filibuster has changed. There has been much talk about whether or not the filibuster is a good aspect of the Senate and whether it should be altered or abolished, and very recently there has been a drastic change.

The Evolution of the Usage of the FilibusterIn the earliest stages of the filibuster, senators would use delay tactics to try and

stop votes from occurring. The delay tactic used then was mostly debate among the senators. It was not until the 1820’s that the idea of unlimited debate gradually evolved. Surprisingly though this was more geared toward independence from the Executive Branch rather than protection of minority rights (something that many believe the filibuster is used for) (Chemerinsky and Fisk 1996). At this point the filibuster was enacted through a single senator continuously talking, or a group continuously debating a topic. Since its introduction, the amount of filibusters used has exponentially grown. By the time 1917 rolled around and the introduction of cloture evolved, the public and senators perceived

filibustering as a serious problem within the Senate (Chemerinsky and Fisk 1996). One of the main reasons that the first cloture rule was adopted pertained to the actions in the Senate in early March 1917. President Wilson proposed to arm merchant ships to defend against the German U-Boats during World War I, but due to a small group of senators the bill proposed at the time did not come to a vote in the Senate. President Wilson had this to say about the filibuster,

…The Congress has been unable to act either to safeguard the country or to vindicate the elementary rights of its citizens. More than 500 of the 530 members of the two houses were ready and anxious to act; the House of Representatives had acted, by an overwhelming majority; but the Senate was unable to act because a little group of eleven senators had determined that it should not. … The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for actions. A little group of willful me, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible (Chemerinsky and Fisk 1996).

There are records of early twentieth century senators talking for over fifteen hours in order to stop a vote. The cloture rule was put into place to stop a filibuster if there was a super majority of two-thirds that wanted to vote.

During the forty years between the 1920’s and the 1960’s the filibuster was unilaterally used over the battle of civil rights. A group of Southern senators that were clearly in the minority found an extraordinary amount of power in the Senate during this time (Chemerinsky and Fisk 1996). Throughout the coming years the filibuster was used to stop bills that prohibited lynching, poll taxes, race and discrimination in employment and many other civil rights bills. One of the longest filibusters in history was a seventy-four day stall in the Senate aimed at stopping the Civil Rights Act of 1964. This drew the attention of the whole nation and really made clear how the filibuster was being used (Chemerinsky and Fisk 1996). It became clear to everyone that the senatorial process needed a change.

There was a drastic alteration to the Senate filibuster in the late 1970’s when the then Majority Leader Mike Mansfield developed a two track system where the Senate would spend the morning on filibustered legislation and the afternoon on other business (Chemerinsky and Fisk 1996). Mansfield knew that this system would benefit both the minority and majority and because of that most senators would not repeal the change. The adoption of the system changed the way Senate ran, and made way for the silent filibuster. The silent filibuster was where a senator could filibuster an issue without even uttering a word (Chemerinsky and Fisk 1996). All of these changes were enacted in order to increase the efficiency of the Senate, and make it so the Senate could go over more bills, and pass over the ones that were going to be filibustered. The process developed so that actual Senate time was reserved for voting, press coverage, and documenting activities for the Congressional Record. Bills that were filibustered would not be brought to the floor, because with the new silent filibustering process, a minority senator could go to the majority leader and tell him that the minority had the required votes to filibuster the bill. This way the Senate wouldn’t waste their time with the bill; the Senate would not even call the bill to the floor (Chemerinsky and Fisk 1996). The majority leader could try and receive the necessary votes for a cloture if he knew he could get the votes.

The stealth filibuster had a few consequences on this process. First of all, it reduced the cost of filibustering because the senator no longer had to talk for hours on end to delay the vote. Second, the silent filibuster eliminated accountability for the senator wanting to filibuster. Both of these have led to an increased usage of the filibuster (Chemerinsky and Fisk 1996).

The Debate Over the FilibusterThe debate over the filibuster can be broken down into concise simple arguments.

First, there is a simple case against the filibuster. It stems from looking at the device of the filibuster, which might seem to be at odds with basic principles of democracy, and in particular the principle of majority rule. Critics say that it undermines simple democratic values by allowing a minority to veto legislation that is preferred by the majority (Eidelson 2013; Marziani, Backer, and Kasdan 2012). Some say that the filibuster posses the “most troubling counter-majoritarian difficulty in modern constitutional law” (Eidelson 2013). However, it is not a hundred percent clear that the principle of majority rule is so obviously grounded in the language of the Constitution. In the sections of the Constitution that refer to the Senate, there is nothing that says that the filibustering process is unconstitutional. Article 1, section 5 expressly states that the Senate has the right to determine its own rules and proceedings (Gerhardt and Chafetz 2010), which gives the Senate freedom to create its own procedures. Some say that the filibuster goes against the Seventeenth Amendment, but the amendment doesn’t speak directly to what percentage of the Senate has to agree with any particular action before moving forward (Magliocca 2011).

Moreover, there are good reasons why the filibuster might make sense even in a system of government founded on the principle of majority rule. First, it is important to ensure that fundamental aspects of our government cannot be easily changed on the whim of a simple majority. For instance, in order to amend the constitution there needs to be more than a simple majority. It is also important to have the filibuster so to encourage bipartisanship within the Senate. Without the filibuster a simple majority could do what ever they pleased with out any regard to the minority. This seems to go against democracy. The filibuster seems to prevent this, and encourage bipartisan behavior among the senators. Thirdly, de Tocqueville describes how the majority could easily tyrannize the minority if a simple majority ran the country. In his book Democracy in America de Tocqueville wrote,

If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength. For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them (Tocqueville 2004).

With all of this in mind, the question becomes what is the next step for the filibuster.

Recent Alterations In more recent years the filibuster has not only been used to stop votes on specific

bills, but it has been increasingly used to stop presidential nominations from being appointed to the executive branch, and to the federal courts (mainly the district and appellate levels). There has been a rising threat to enact the Nuclear Option (otherwise known as the constitutional option). When the minority continuously filibusters everything, the majority could get to a point where they could enact the Nuclear Option. In the past, the threat of this option has led to compromise among the minority and the majority. The Nuclear Option would basically take away the minorities right to filibuster (Johnson 2009). The threat of this has been used numerous times in recent years but has never actually been used, until very recently.

On November 21, 2013 the US Senate eliminated filibusters for all presidential nominations besides for those to the US Supreme Court (Kane 2013). This altered the amount of votes needed to ratify a presidential appointee from 60 to 51 (a simple majority). With 52 senators voting for this Nuclear Option, the change nearly passed. Different

senators had drastically different views on this change. The Majority Leader Harry Reid believed that the chamber had to evolve. He said, “The American people believe the Senate is broken, and I believe the American People are right, it’s time to get the Senate working again” (Kane 2013). However, Minority Leader Mitch McConnell said, “It’s a sad day in the history of the Senate,” adding that he believed this was a Democratic “power grab” (Kane 2013). There are many different schools of thought about this alteration, but only time will tell if this was a true democratic change.

Works Cited

Chemerinsky, E, and C Fisk. 1996. “The Filibuster.” http://scholar.google.com/scholar?hl=en&btnG=Search&q=intitle:The+Filibuster#4 (November 30, 2013).

Eidelson, B. 2013. “The Majoritarian Filibuster.” Yale Law Journal: 980–1023. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2202791 (November 30, 2013).

“Filibuster and Cloture.” www.senate.gov. http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm (November 30, 2013).

Gerhardt, M, and J Chafetz. 2010. “Is the Filibuster Constitutional?” University of Pennsylvania Law Review 1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1932700 (November 30, 2013).

Howard, NO. 2010. “The Evolution of Obstruction : Mike Mansfield and Multiple.” https://kuscholarworks.ku.edu/dspace/handle/1808/6723 (November 30, 2013).

Johnson, Gbemende. 2009. “The Nuclear Option Game: The Threat of Dramatic Rule Change to Prevent Legislative Obstruction.” Conference Papers -- Southern Political Science Association.

Kane, Paul. 2013. “Reid, Democrats Trigger ‘nuclear’ Option; Eliminate Most Filibusters on Nominees.” The Washington Post. http://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html (December 1, 2013).

Magliocca, G. 2011. “Reforming the Filibuster.” Northwestern University Law Review 105(1): 303–29. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1564747 (November 30, 2013).

Marziani, M, J Backer, and D Kasdan. 2012. “CURBING FILIBUSTER ABUSE.” http://www.astrid-online.it/--riforma-/studi--ric/BCJ_Filibuster_12_2012.pdf (November 30, 2013).

“The Evolution of the Senate Filibuster.” 2013. The Washington Post. http://www.washingtonpost.com/politics/the-evolution-of-the-senate-filibuster/2013/11/21/d4b46486-52f4-11e3-a7f0-b790929232e1_story.html (November 30, 2013).

Tocqueville, Alexis de. 2004. Democracy in America. Digireads.com Publishing. http://books.google.com/books?hl=en&lr=&id=OyiLOES54YgC&pgis=1 (December 1, 2013).