The Volokh Conspiracy - 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 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 voluntarily, 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 than 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. 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 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.

	[Todd Zywicki, April 25, 2005 at 10:48am] Trackbacks 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 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 voluntarily, 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 than 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. 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 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.