Posted by Todd Zywicki:
Filibuster First Principles:
Here's a very simple puzzle that I don't get about the filibuster
question. Leave aside the constitutional questions and particularities
of procedures to change internal rules. As I understand it, the
justification for the use of the filibuster in the Senate (contra the
House) is that the Senate is a deliberative body, and that the
filibuster permits extended debate on issues that come to the floor
prior to taking a vote. But doesn't that imply that when the debate is
done and there is no further deliberation, that there is some
obligation to bring the matter to a vote?
So here's my question. Is there still some debate going on with
respect to Justice Owen, for instance, whose nomination has now been
pending for 4 years? Are there some Senators who are still on the
fence, undecided on how they want to vote on her nomination? If
deliberation is done, doesn't that mean that there is an implicit
obligation to allow the matter to come to a vote? And if there is no
ongoing debate or further deliberation on the matter, then it seems to
me that the the Senate should be able to adopt rules that allow
fully-deliberated matters to come to a vote and not allow the minority
to use the filibuster to kill a matter.
In fact, the majority needed to invoke cloture has fallen over time
(summarized [1]here). Looking at the history, it appears that the
rationale for changing the filibuster rules over time has been to
balance the rights of the majority to act versus the rights of the
minority to state their case. Thus, where the filibuster has been
abused by a minority to kill legislation, as opposed to merely slowing
it and ensuring full deliberation, the Senate has moved over time to
reduce minority abuse of the filibuster while preserving full
deliberation. In light of this history, given the apparent absence of
any further debate on some of the judicial nominees, it seems plain
that the use of the filibuster against Justice Owen (most notably) is
quite clearly an abuse of the power. As a result, if the minority
fails to end its abuse voluntariy, the Senate majority would be well
within its rights to adopt rules that eliminate abuse of the
filibuster power, just as it always has in the past.
This distinction between the use of the filibuster to slow versus stop
a particular Senate actions seems to be the intuition behind the
historic criticism of the use of the filibuster to kill Civil Rights
Legislation (and before that, the repeated use of the filibuster to
kill anti-lynching legislation of the 1920s and 1930s). In each of
those situations, the purpose of the filibuster was its use by
southern Senators to kill the legislation outright, rather than merely
to ensure full deliberation of the issue prior to a vote. Moreover,
this may explain why in the public mind the abuse of the filibuster is
associated with such stunts as Senators reading names from a phone
book, because these sorts of speeches are seen as abuse of the
filibuster, in that they are non-deliberative in nature.
I can't find anything in the Senate history that suggests that it has
ever been thought an appropriate use of the filibuster to kill
legislative action even after all debate and deliberation is
effectively complete. And where the filibuster has been used in an
abusive manner to kill rather slow legislative activity, my reading of
the history is that over time the majority has changed the rules in
order to eliminate the abusive use of the filibuster power.
Of course, it should be noted the asserted rationale for the
filibuster in the Senate may be an ex post rationalization more than
an historic justification. [2]Some have argued that the filibuster has
nothing at all to do with the nature of the Senate versus the House,
but rather is a historical accident. As a historian of the filibuster
[3]recently observed:
The right to extended debate was not created until 1806, when the
Senate cleaned up its rulebook and dispensed�probably by
mistake�with the rule that allowed a majority to limit the debate.
Filibusters did not begin in earnest until the newly formed
Democratic and Whig parties formed several decades later.
References
1. http://www.juntosociety.com/government/filibuster.htm
2. http://www.factcheck.org/article317.html
3. http://www.brookings.edu/views/op-ed/binder/20030525.htm
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