The Case for Criminalizing Filibusters
Wednesday, May 16, 2012
One of the nation’s leading business lawyers has decided to take on the filibuster and get it outlawed.
Emmet Bondurant, selected Lawyer of the Year for Antitrust and Bet-the-Company Litigation in 2010, has proposed that the U.S. Supreme Court abolish the U.S. Senate’s use of the filibuster. Common Cause, of which Bondurant is a board member, has filed a lawsuit challenging the constitutionality of filibusters.
According to Bondurant, the filibuster was created by accident. Senators in 1806 accepted Aaron Burr’s recommendation to do away with “the previous question” motion, which Senators used to end debate. The understanding then was that lawmakers knew when it was time to stop talking and move on to a vote.
It was only decades later that someone realized the absence of the “previous question” motion allowed Senators in the minority to bottle up legislation or a presidential appointment and prevent it from being voted on. In 1917, the “cloture” rule was adopted to end lengthy debates, but since it required a two-thirds vote, the filibuster was still used to block legislation. In 1957—in the longest filibuster in history—Strom Thurmond spoke for 24 hours 18 minutes to block the Civil Rights act.
“Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant wrote in a paper published by the Harvard Journal on Legislation.
To Learn More:
Is the Filibuster Unconstitutional? (by Ezra Klein, Washington Post)
The Senate Filibuster: The Politics of Obstruction (by Emmet Bondurant, Harvard Journal on Legislation) (pdf)
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