The United States Senate (2011) uses the term filibustering to refer to the extended debates or any tactics done by Senators to block a measure by preventing a vote. This is an expression of the right to debate and can turn into an endless balderdash which can only be ended by a cloture, which can be invoked by a super-majority of three-fifths of Senatorial votes, not to halt the filibuster, to impose a time limit to possible dilatory motions.
Part I: Origin
The farthest filibustering can be traced in the American history was less than twenty years after its first Constitution was ratified. In 1806, US Vice President Aaron Burr thought that the Senate rules were unnecessarily lengthy and complex. A rule called "previous question" motion was one of those eliminated as they were deemed extraneous. The "previous question" motion came from the English parliamentary procedure adopted by Second Constitutional Congress, in which filibusters were banned as early as 1604. This rule made it possible for the majority to put an end or postpone a debate.
The "previous motion" was invoked only once during Aaron Burr's four-year term, and the Senate of the time had not foreseen that the unlimited debate may be abused to hinder the Senate business altogether by an unrelenting minority. "Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking" (Klein, 2012). It would be 3 decades after that the first filibuster would be mounted.
Part II: History
Ezra Klein of the Washington Post (2012) analyzed a graph of the frequency of the number of cloture votes that were invoked to break a filibuster since President Wilson first used it in 1919. Two-thirds of the Senate was required to vote for a cloture to push through when President Wilson urged his senate to impose the rule. The required vote for a cloture decreased to three-fifths of the Senate in 1975. During that time, filibusters rarely happen, and so the graph displayed barely significant number of cloture votes between 1919 to around 1970. In 1972, something in the political arena made the number of attempted cloture votes increase from barely 10 to 40 a year, an absolute leap from its quiet numbers since the cloture rule was passed. This must be what triggered the decreasing of required cloture votes by 1975.
The graph again shows a change in the cloture norms when the number of attempted cloture exceeded 60 every year starting sometime before George H.W. Bush's term ended. Then, it skyrocketed to over a hundred per year since when Obama took office. What used to be a rarity, used in very special circumstances, become very common that it should not be called a filibuster anymore, but the three-fifths-vote requirement? It is no longer a rule of majority but a tyranny of a minority (Bondurant, 2011). Because of the three-fifths-vote requirement, a minority of the Senate and filibuster their way out of a measure without any real solutions to the question needed to be addressed.
Part III: Arguments for Keeping, Modifying, or Ending the Filibuster
Argument for Keeping
Defenders of the filibuster claim that it exists as an expression of the right to unlimited debate (Bondurant, 2011), which is argued to be a facet of a democratic entity. Also, it is asserted that filibustering has its fortuitous virtues in the matters of the State.
According to the 2011 Congressional Research service Report for Congress, a legislative consensus is strived for by Senators because of the powerful incentive created by the possibility of filibusters. This also prompts the majority leader to call up a bill that is least likely to by filibuster. Generally, the possibility of a filibuster promotes the Senate's efforts to come a near as possible to a consensus as the Senators' individual beliefs would allow.
Filibusters were also considered an important provision in preventing the "tyranny of the majority" (Bondurant, 2011). This was portrayed in a classic film called, "Mr. Smith Goes to Washington," where a legislator considered of little importance filibustered against a powerful motion of special interests (Harkin, 2010), and was applauded his victory by the viewing public.
Argument to Modify
Senator Tom Harkin wrote in 2010 about the need to fix the filibuster provision. After sitting its usefulness as illustrated in the classic film, he laments that it has come to a point of absurdity and destructiveness. He introduced a bill that will bring back to power to the majority by requiring only a majority vote, instead of three-fifths, to succeeding cloture attempts after a first failed one. This way, the virtues of filibustering can be kept, while the tyranny of minority can be eliminated.
Argument to End: Unconstitutional
Primarily based on the historicity of filibuster, Emmet Bondurant concludes in his widely quoted essay, "The Senate Filibuster: The Politics of Obstruction" (2011) that filibustering does not coincide at all with the democracy the Framers of the Constitution originally envisioned. Its existence was a mistake, a result of an oversight to possible consequences of simplification of the rules, an abuse to a provision intended to seek the truth and turn it into a time-wasting hindrance to action. Bondurant (2011) deems it unconstitutional despite its long history.
Filibustering had been around almost as long as the US Constitution and banning it altogether may be considered a daring move. But given the nature of its existence – which was a result of a mistake, removing it from rules of the Senate might be even considered commonsense.
Part IV: Conclusion
In a time of a much needed action for the struggling economies of the world, filibustering becomes an act of tyranny of the minority against the present administration when it was once a provision against the tyranny of majority. It is wasteful of time and resources. In the light of its history, and its fundamental unconstitutionality, perhaps it is high time that that the truth behind its existence is exposed. Whether the Senate keeps it or not, the one thing sure is that the way filibustering is use in the Senate these days must change course if the country is to see some serious law-making to happen to change the state of things in the US.
Beth, R., Heitshusen, V., and Palmer, B. (2011 February 22). "Filibusters and Cloture in the Senate." Congressional Research Service Report for Congress. Retrieved from: http://www.senate.gov/CRSReports/crs-publish.cfm?pid=%270E%2C%2APLW%3D%22P%20%20%0A
Bondurant, E. 2011. "The Senate Filibuster: The Politics Of Obstruction." Harvard Journal on Legislation Vol 48. 467-513. Retrieved from: http://www.harvardjol.com/wp-content/uploads/2011/07/Bondurant_Article.pdf
Harkin, T. (2010 June 30). "Fixing the Filibuster." The Nation. Retrieved from: http://www.thenation.com/article/36903/fixing-filibuster#
Klein, E. (2012 May 15). "The history of the filibuster, in one graph." The Washingtong Post. Retrieved from: http://www.washingtonpost.com/blogs/ezra-klein/post/the-history-of-the-filibuster-in-one-graph/2012/05/15/gIQAVHf0RU_blog.html