The United States of American is a bicameral legislative government controlled and operated by a two-party dominant system in which Republicans and Democrats fight at constant ends about the right course of action for our nation. There are certain powers and provisions given to these parties as they operate the day by day politics of the United States. Many of these powers lie in the different branches of government, but what we want to focus on here is the power vested in the legislative branch only. The legislative branch, comprised of the House of Representatives and the Senate, is full of representatives from the two major parties who work together to develop the laws and policies under which the citizens of the United States live and operate. However, much of the progress in developing certain laws or policies is hindered by the constant differences in opinions of the two parties. Along with these differences in opinion come certain rights and powers that the parties use to help further their cause. The majority party, or those with the majority number in representation, uses that majority as a way to pass their legislation and counter proposed legislation by the minority party. This majority gives that controlling party a huge advantage and larger influence over legislation. In order to regulate the amount of power and control the majority party has, there are also powers granted to the minority party. One such power is the ability of the minority party to use a filibuster. A filibuster is defined as a type of parliamentary procedure; it is a form of obstruction in a legislature or other decision-making body whereby a lone member can elect to delay or entirely prevent a vote on a proposal. The filibuster once existed in both houses of the Congress, but it now exists only in the Senate. The House of Representatives put a permanent rule limiting the length of debate, thereby ending the filibuster power in 1842. With this realization, we shift our focus to the Senate proceedings themselves, focusing on the use of the filibuster and how the power of the filibuster changes depending on majorities within the Senate.
As stated above, what the filibuster ultimately does is provide a weapon of power to the minority party in the Senate. This is so because a filibuster must be overcome by the majority party through a cloture vote. A cloture vote is one that brings about a quick end to debate. In regards to a filibuster, a cloture vote is one in which sixty out of the one hundred senators concur on a vote to stop the filibuster. The cloture procedure originates in the Parliament of the United Kingdom but what implemented in the United under Senate Rule XXII on March 8, 1917. This concept of the cloture vote and the power associated with it is a key theme in understanding the power and importance of the filibuster. Furthermore, what is being addressed in this paper is the way in which the Senate can and does act when a majority party has the majority for a cloture vote versus when they do not. This topic is extremely relevant as we look at our United States Senate today. Just recently, there was a major shift in the Senate when the Democratic Party who currently holds the majority in the Senate as well as the House lost one of their seats in the Senate due to the passing of Democratic Senator Ted Kennedy of Massachusetts. The reason this is of great significance is because until this point, the Democratic party controlled sixty of the one hundred seats, thereby granting them the power of passing a cloture vote and stopping Republican filibusters. After Republican Scott Brown won the seat previously held by Kennedy, the Republican Party gained the number of seats needed to filibuster without the imminent threat of cloture. The Senate has a great amount of power and this is one giant step that helps to balance the power between the two parties in the United States Congress. We can use this new change to evaluate how the current Congress and recent Congresses of the past act based on whether or not there exists a filibuster threat.
To begin, let us examine how the parties act when the majority party does not have the sixty members required to pass a cloture vote. In this instance, the minority party does indeed have the ability to filibuster. It is important to recognize that a filibuster is not simply used each and every time that the minority party disagrees with the majority party. Filibusters are more often times used when the minority party is strongly in opposition to the legislation proposed by the majority party. Otherwise, legislation would never be passed during times when the majority party has no cloture majority unless there is high level of defection in which members of the minority party would vote against their own party or a “nuclear option” such as the one in 2005 is proposed. This high level of defection is unlikely and therefore serves as evidence that a filibuster is not used for every issue that arises. When legislation does arise that the minority party wishes to “kill” before a vote can occur, a filibuster often times does occur. Some examples of this include Senator Robert Byrd’s fourteen hour filibuster in hopes of delaying the Civil Rights Act of 1964. This fourteen hour speech was part of a fifty-seven day drag out of the debate on the Civil Rights Act. Although the act eventually passed, this long delay gave the Democratic Party time to implement other additions and strategies. Another example of the filibuster in prime use can be seen during former President Lyndon Johnson’s attempt to appoint Abe Fortas as Chief Justice of the Supreme Court. According to The New Republic, Michigan Senator Robert Griffin launched a four day long debate during which “one senator read long passages of James F. Byrnes's memoirs in a thick Southern accent.” This filibuster ultimately succeeded and Fortas was not appointed. This then allowed former President Nixon to appoint Warren Burger to the lifelong position, thus giving the Republican Party the victory they desired. For a more recent example, let us examine the Democratic filibustering of several judicial nominees in 2005, the first of whom was Priscilla Owen. Video 1 illustrates this further by depicting Democratic Senator Robert Byrd of West Virginia filibustering in 2005 against the nomination of Priscilla Owen to the 5th Circuit U.S. Court. What these three examples along with numerous others show is that the minority party is not powerless in the Senate, that they can control certain aspects of the Senate from the minority position, and that more importantly, the majority party cannot simply do as they please. This is not to say the majority party simply does as they please when they have the ability to stop a filibuster, but they do face less resistance.
When the majority party does control sixty or more seats within the Senate, they enable themselves the power to pass cloture and ultimately give their party a greater chance of passing legislation through the Congress. Up until January of this year, 2010, the Democratic Party held a sixty-forty majority in the Senate and had just that power. We are fortunate to be able to see a great example of this in the recent year. An article from FDL News on 23 December, 2009 illustrates that cloture power. The article titled “Senate Dems Pass Third And Final Cloture Vote On Health Care Bill – Passage Tomorrow” explains that the Senate used their majority to pass the final cloture vote on the health care bill 60-39, thus eliminating the Republican filibuster potential. The majority party’s ability to control the Senate and pass this cloture is what ultimately enabled the healthcare bill to be passed by the Senate and passed on to the House for approval. Video 2 shows President Barack Obama’s remarks following the Senate’s passage of the healthcare bill and helps to illustrate the historic event brought forth in part by the Senate’s cloture majority. Without this majority, the healthcare bill may have never been passed on and signed into law. This is one of the largest pieces of legislation signed in the last few decades and will have a significant effect on nearly all citizens in the United States. This illustrates the significance and power that the filibuster can have and the power that having a cloture majority does indeed have. The ability to use a cloture majority ultimately enables the majority party in the Senate to pass on legislation, limit debate by the minority party, and have a greater degree of power than they would have if their number of seats were less than sixty. This is not to claim that healthcare would have never passed had the Senate Democrats not had a sixty seat majority. Instead, this is simply to point out that each seat that we, the people of the United States, fill with a representative that we elect is truly significant. In this example, one seat and one member could have caused immense change that would have altered the future of healthcare for our entire nation. Aside from the actual use of the filibuster is another issue in which the filibuster has direct impact.
By simply having enough representatives in the minority to have the ability to filibuster, the minority party, regardless of which Congress or which era they belong, have the ability to place fear into the minds of not only the majority party but more so of its judicial nominees. Beginning with Senator Robert Griffin’s filibuster against former President Johnson’s judicial nomination which is eluded to above, there has become a long stretch of filibustering judicial nominees which continues in the present day. A former President George W. Bush nominee for the 5th Circuit Court, retired Judge Charles Pickering of New York, was successfully filibustered by Senate Democrats in 2001. He explains the problem caused by excessive filibustering further in Video 3. This explains that although the use of the filibuster does an excellent job in keeping a more equal balance of power between the two parties in the Senate, it can be overused and can even have negative consequences on the structure of our legislature or judiciary. Just as Judge Pickering states, this constant turmoil and the negative threats and actions of practices and procedures such as filibusters can and perhaps will lead to a less informed and more lackluster list of nominees and appointees to our political system. If we want to place the best minds and the best people in the positions of authority in our nation, we must begin to depolarize the two parties and work more cooperatively at achieving our desired goals. The filibuster is a significant procedure in our United States Senate, but it is one that needs to be understood and executed with greater efficiency and professionalism.
Dayen, David. "Senate Dems Pass Third And Final Cloture Vote On Health Care Bill – Passage Tomorrow." FDL News (2009): n. pag. Web. 13 Apr 2010.
"Slideshow: Famous Filibusters." New Republic (2009): n. pag. Web. 11 Apr 2010.