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Why Do We Have the Filibuster?

March 9, 2013

Sen. Rand Paul’s near-13-hour filibuster made national news and drew both praise and scorn, some of the latter from members of his own party.  The right of a United States Senator to speak for as long as he or she can stand and deliver is as old as our Republic.  It may seem obstructionist and outdated to many; why then do we still allow it?

Our system of government is based on checks and balances; it is not intended for swift action.  the Founders knew that the rights of minorities, or of everyone, could be steamrolled by a majority ramming through ’emergency’ decrees unless there were mechanisms in place to safeguard due process and to allow for a full, extended debate where the truth could come out.  Filibusters are part of the genius of our system.  They are also a cause of frustration for those who claim that ‘we can’t wait – this time it’s different.’

The Founders knew their history.  Most were steeped in the classics.  they knew, for example, that when a young Rome faced its’ first constitutional crisis in ‘the secessions of the plebeians,’ the end result of the commoners literally leaving the City and going on strike was, among other things, the establishment of the tribunate (each tribune had veto power over Senate bills), the ‘plebiscite,’ or vote of the commons, which had force of law, and other reforms intended to balance power to power.

This kind of lesson was not lost when the Senate was formed; it’s self-proclaimed title, ‘The World’s Greatest Deliberative Body,’ stems in part from rules that give individual Senators extraordinary power over the legislative process, as compared to members of virtually all other legislative bodies.  One Senator may block an Executive or Judicial Branch nomination (when such require, per the Constitution, the ‘advice and consent’ of the Senate), for as long as she or he sees fit.  A lone Senator may also speak for as long as he or she can stand and hold the floor of the Senate – the ‘filibuster.’  No less an authority than the late Sen. Robert Byrd, a master of parliamentary maneuver and intrigue, considered the filibuster to be an integral and essential part of the Senate’s character as a legislative and deliberative body.

Senator Paul’s use of this Senate rule is a rarity in our time; Senators often threaten, but seldom actually take the floor to speak for hours on end.  The mere threat of a filibuster is often enough to force action on what the Senator wants done.  Some notable filibusters, such as the late Senator Thurmond’s record-setting 24+ hour speech blocking the Civil Rights Act of 1957 (which passed and became law anyway), are best remembered, if at all, as a reminder that the filibuster, like any other tool, may be used for good purposes, or ill ones.  However, the ill-use of a power does not mean that the power itself is unjustified, and the limits of human stamina make of this one only a delaying tactic.

In this case, the President’s nominee to head the CIA was confirmed in spite of Sen. Paul’s filibuster.  however, the question upon which the confirmation debate revolved – does the President have the right to order the execution of Americans, without trial, on American soil, by use of ‘predator drones’ – got the hearing it deserved, and the speech rallied opposition to the idea to the point that the Attorney General issued a statement denying that the power to kill ‘non-combatant’ Americans on our own soil existed.  (No definition of who is, or is not, a ‘combatant’ was offered, nor was it specified who makes that decision; however, the Senator’s effort is still a classic example of the use and value of this rule in forcing a debate in place of a rush to judgement.)

For the same reason that one juror may block a conviction, our system recognizes the right, in certain circumstances, of a lone individual to stand up and stop what they see as gross injustice from taking place, the Senate’s rules allow for the use of the filibuster.  With examples ranging from ancient Rome, to our own time of ’emergencies’ being used to seize power, abrogate individual rights and as a cover for crimes of all kinds, we ought to be happy that our system is designed to be inefficient – if by that one means that things don’t happen until all voices have a chance to a full hearing.

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