Author:Catherine L. Fisk, Erwin Chemerinsky

Page 1043

A filibuster is the strategic use of delay to block LEGISLATION, to force an amendment, or to prompt other action by the U.S. SENATE. Filibusters occur in the Senate, but not in the U.S. HOUSE OF REPRESENTATIVES, because only the Senate allows unlimited debate on any measure, and no motion exists by which a simple majority of senators can bring any debatable measure to a vote. The only way the Senate can vote on any matter subject to filibuster over the objection of even a single senator is to obtain CLOTURE (an end of debate) under Senate Rule XXII, which requires the votes of 60 senators.

Contrary to popular belief, a filibuster today is seldom conducted through actual extended speech on the Senate floor, but is accomplished rather by a senator threatening to speak indefinitely if a matter is brought before the Senate for a vote. Consequently, a filibuster occurs when senators credibly threaten the Senate leadership that they possess the requisite 41 votes to block cloture under Rule XXII. The widespread use of filibuster threats has effectively increased the number of votes it takes to enact controversial legislation from 51 (or 50 plus the Vice-President's vote) to 60. A majority of senators cannot change this because any revision of Rule XXII requires a vote of two-thirds of the Senate.

The conventional objection to the filibuster is that it is antimajoritarian and thus antidemocratic. The supermajority requirement of Rule XXII, however, is not alone among Senate procedures that are antimajoritarian. Notably, Senate rules empower committees to determine the content of proposed legislation and to decide whether legislation reaches the floor for a vote. Over the years, committees have exercised their power to block or divert action favored by majorities of the House and Senate. The filibuster may counteract the antimajoritarian aspects of the committee system by enabling individual senators to block legislation favored by a committee or to force changes rejected by a committee. Thus, the filibuster may work not so much against majority rule as against other forms of minority power.

The attacks on the constitutionality of the filibuster nonetheless focus on its antimajoritarian character. The Constitution is silent on the topic of filibusters; it neither authorizes nor prohibits them. There are two aspects of the filibuster rule that may be unconstitutional: one is that it requires a supermajority to enact...

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