Lund: Filibuster and the Rights of Minorities

In an article examining the growth in use of the filibuster to control passage of legislation, Professor Nelson Lund points out the reason why the framers of our nation's Constitution ensured that the majority would not have total control.

"Our constitutional structure is meant in part to protect the rights of minorities from what is sometimes called the tyranny of the majority," said Lund. "There are lots of features of the system to make it relatively easy for minorities of various types to block legislation, because the designers of our constitutional system thought that simple majorities could easily get carried away by passions of one kind or another."

The tactic of the filibuster has been used since the early 1800s to defeat legislation, and its use benefits whichever party is not in power. Current use has grown to the point where for nearly all legislation, 60 votes are necessary. It is estimated that in the 1960s, about 8 percent of major legislation was subject to obstructionist tactics such as filibusters. Today that figure approaches 70 percent.

Even with control of White House and Congress, pesky filibuster vexes Democrats, Waterloo Region Record, January 21, 2010. By Lee-Anne Goodman, The Canadian Press.

"The rules of the 100-member Senate chamber allow just 41 members - the exact number of Republicans now in place there - to block action that is favoured by the majority in both houses of Congress, and by the president. Consequently, some critics say the filibuster renders the United States largely ungovernable, in addition to making it one of the most difficult democracies in the world in which to pass laws.

"The filibuster wasn't part of the founding fathers' expansive list of checks and balances as they drew up the constitution, a longtime Capitol Hill veteran points out, although the document does give each house of Congress the power to 'determine the rules of its proceedings.'

"Yet the tactic has been used periodically since the early 1800s to defeat legislation and in recent years, the threat of a filibuster has been employed successfully with increasing regularity.

"'Everybody sets their own rules, and there are rules of the Senate and rules of the House of Representatives,' said Stephen Hess, a senior fellow at the Brookings Institution think tank who first came to Washington in the 1950s to work for Dwight D. Eisenhower.

"'The filibuster basically benefits whoever's not in power, and there is a certain logic to it - there are times that a minority must be heard and should be heard. But it's reached a point where it's become all-pervasive. In the 1950s, very rarely did you ever have a filibuster. Clearly, now, for virtually all legislation, you need 60 votes.'

"Some of the most famous filibusters include Senator Huey Long's in the 1930s to thwart several bills he felt worked against the common man. Long, a famous orator, recited Shakespeare and read recipes during his filibuster. In 1957, Strom Thurmond filibustered for more than 24 hours against the Civil Rights Act.

"There has long been a hue and cry from Democrats and Republicans alike to do away with the filibuster, usually when each party is in power and seething as they watch their bills die on the Senate floor time and again.

"But less self-motivated political observers frequently point out that no other democracy has a comparable barrier to majority rule. And only the complex congressional manoeuvre known as 'reconciliation' - politicos in D.C. call it the 'nuclear option' - can end a filibuster."

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