Kill the Filibuster: Overview and Background

As promised, here's my super-heady, theory-heavy analysis on why the filibuster should be killed as a rule in the Senate. Enjoy,

The filibuster, and the vote of cloture needed to break it, is an oft-debated topic when discussing the rules of the United States Senate. I argue that, while this rule can be defended from certain theoretical standpoints – namely Jean-Jacques Rousseau’s general will – it ultimately lacks the sufficient theoretical basis to be a rule central to the operation of what is often called the greatest deliberative body in the world, as can be shown by the arguments of John Locke. I will briefly explore the history and logistics of the filibuster and the vote of cloture, offer theoretical arguments for this rule, and finally prove that it does indeed lack a sufficient theoretical basis and should be terminated.

The filibuster has been in existence as long as the Senate itself. Originally, it could be employed by Representatives as well, but the size of that institution soon made it necessary to restrict debate, and the rule was abolished. Essentially, the filibuster allows any Senator to hold the floor for an unlimited amount of time and therefore block a vote on a bill. The record for longest filibuster is more than twenty-four hours. In this form, the filibuster essentially allowed for a minority of even one Senator to completely stop the passage of major legislation with wide-spread public support. This unabashed possibility of a minority “hostage situation” prompted the institution of Rule Twenty-Two in 1917. This rule allowed for the first vote of cloture. This was a two-thirds vote of the Senate to end debate and immediately bring a bill up for vote. However, this two-thirds “super majority” was far too difficult to come by, and cloture was used extremely rarely for the next five decades. For this reason, cloture was changed to only require a three-fifths vote of the Senate in 1975.

So, as it stands today, sixty Senators are required to end a filibuster and bring a bill up for vote. Although a majority vote of fifty-one still passes a bill from the Senate, this vote of sixty is necessary for almost any major partisan legislation, forcing the largest Senatorial battles and darkest back-room deals to occur before a bill is even debated. For all intents and purposes, any major piece of legislation needs sixty votes, not fifty-one, to pass through the Senate.