Filibustering in the U.S. Senate By Lauren C. Bell

The Senate's legislative process is a complicated mix of a small number of written rules and a much larger number of precedents and customs. Beeman (1968, 420) noted that “[t]he development of rules governing debate in the United States Senate was a result of previous tradition, political expediency, and pure accident.” These elements combine to slow the pace of legislation through Congress. Martin Gold, an advisor to former Senate Majority Leader Bill Frist, has noted a defining feature of the Senate with regard to its legislative process—both debates and amendments are virtually unlimited (Gold 2004, 2). This feature results primarily from an absence of formal rules; lacking codified constraints on debate and amendments, informal norms and customs that have developed within the chamber over the last two centuries have led to senators’ reliance on unfettered debate as both a tool for legislative progress and an impediment to legislative success. The right of unlimited debate—that is, the right to filibuster—derives from the Senate rules’ failure to impose any constraints on senators’ right to debate and from the relative few powers of agenda control that Senate leaders possess. Gold confirmed that “Senate rules do not specifically authorize filibusters; rather, extended debate is possible in the absence of debate restrictions” (2004, 44).

In fact, the term filibuster appears neither in the Constitution of the United States nor in the standing rules of the Senate. As Binder and Smith (and others) have capably documented, the word filibuster, at the time the U.S. national government was being formed, referred to pirates and piracy on the high seas, and not to any element of the legislative process. Fisk and Chemerinsky (1997, 192) traced the development of the term as it referred to pirates and “mercenary sailors”—often North American—“who made war against the governments of Central and South America.” They linked its negative parliamentary connotations to its historical roots, writing that “[u]se of the term to refer to obstruction