US Senate Rule XXII: Filibuster

Stories like this one (registration required) in the Washington Post report on Democrats from Vice President Joe Biden to freshman Sen. Tom Udall (NM) calling for changes to the filibuster, a century-old parliamentary device used by the minority party to draw out debate and block the wishes of the majority party. In his column in today’s NY Times, Paul Krugman states:

The truth is that given the state of American politics, the way the Senate works is no longer consistent with a functioning government. Senators themselves should recognize this fact and push through changes in those rules, including eliminating or at least limiting the filibuster. This is something they could and should do, by majority vote, on the first day of the next Senate session.

What to do about the filibuster is a topic that has been around for a long time. The US Senate website has a brief history of Rule XXII on filibusters and cloture. Views about amending the rules governing its use change depending on whether the speaker is part of the majority party or part of the minority party. The Washington Post article contrasts Minority Leader Sen. Mitch McConnell, (KY) on his effort, five years ago when he was Majority Leader, to change nearly century-old filibuster rules with his oppostion to the move now. As a US Senator, Biden supported filibusters to block President Bush’s judicial nomination, most notably the nominations of Miguel Estrada, Caroline Kuhl and Priscilla Owen. Likewise, Mr. Krugman, in his March 29, 2005 column, warned of efforts by extremists to eliminate the filibuster to pack the courts with like-minded judges. Clearly, one’s opinion on the topic changes depending on whether one is in the majority or the minority.

The Brooklyn Law School Library has in its collection two worthwhile items for students interested in the history of the filibuster. Politics or Principle?: Filibustering in the United States Senate by Sarah A. Binder and Steven S. Smith (Call #JK1161 .B56 1997) has a Table on page 7 showing the Major Rule Changes Affecting the Senate Filubuster dating back to 1806. The book dispels much of the conventional wisdom about the filibuster and focuses on five major myths: that unlimited debate is a fundamental right differentiating the Senate from the House of Representatives; that the Senate's tradition as a deliberative body requires unlimited debate; that the filibuster was once reserved for a few issues of the utmost national importance; that few measures are actually killed by filibuster, and that senators resist changing the rules because of a principled commitment.

The more recent item is Filibuster: Obstruction and Lawmaking in the U.S. Senate by Gregory John Wawro and Eric Schickler (Call # JK1161 .W39 2006). The introduction to the book has a section titled “The Centrality of Obstruction to Senate Lawmaking” that says “Whatever the reason, the Filibuster is deeply ingrained in the political culture of the United States.” It goes on to say “Even though the filibuster is the most popularly known procedural maneuver in the Congress, it has received scant scholarly attention.” Its recitation of the history of the filibuster tells the reader that before 1917, there was no way to end a Senate filibuster. In that year, the Senate adopted its first “cloture rule,” which enabled a two-thirds majority to end debate.

PrawfsBlawg recently had an interesting post The legal debate over the Senate's rules: a dialogue that begins to discuss scholarly aspects of the US Senate as a continuing body, arguably the most powerful constitutional consideration in favor of the permissibility of entrenched Senate rules. There is a link to an SSRN paper Burying the 'Continuing Body' Theory of the Senate by Aaron-Andrew P. Bruhl of the University of Houston Law Center.