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Constitutional FAQ Answer #139

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Q139. "Why can't I find anything about filibusters in the Constitution?"

A. The short answer is because there is nothing there to find: the Constitution does not contemplate the filibuster in any way, directly or indirectly. So, then, what is all this talk about the Framers, the Senate, the filibuster, and its relationship to the Constitution?

By way of definition, the filibuster is a delaying tactic that is a part of the rules of the Senate. It is a word that comes from the Spanish word for "freebooter," which means "pirate." The origin seems to be that a person who filibusters is plundering the time and focus of a deliberative body, like a legislature. Specifically, in the U.S. Senate, a filibuster is used by a single Senator or group of Senators to stop or delay action on a piece of legislation. It has long been the tradition of the Senate that debate may not be stopped unless those taking up the debate allow it to be stopped. In other words, once a Senator has the floor, he or she may continue to talk forever. This rule goes back to the very beginnings of the Senate.

The Constitution allows each house of Congress to set its own rules. Early on, both houses had unlimited debate provisions. The House of Representatives, however, as a much larger body, found this rule unworkable and rules to limit debate came into effect. The Senate, until recently, never created such a rule. The term for the use of unlimited debate as a legislative tactic became known as a filibuster in the 1850's. The first attack on the filibuster came in 1841, by no lesser a figure than Henry Clay. It survived, though, until 1917, when the Senate adopted a rule allowing a filibuster to be stopped by a two-thirds vote. Such a vote is known as "cloture." Cloture ended the ability of a single Senator to hold up Senate business, but since a two-thirds vote can be difficult to get, it certainly did not stop the filibuster.

In 1975, the two-thirds rule was changed to three-fifths. Today, the three-fifths rule allows cloture on the basis of the vote of sixty Senators. In 2005, the filibuster again came under attack when threats to filibuster judicial appointments prompted calls for a rule change specifically against filibusters on judicial appointments.

So the filibuster has its constitutional origins in the ability of each house of Congress to set its own rules. It has its origins in the framers in that they saw the Senate as a place where extended debate and discussion would have a cooling effect on the actions of the more "heated" House. And it has its origins in the concept ingrained in our political system that the rights of the minority must be protected from the force of the majority.


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