Ending the Filibuster
No, the filibuster was not built into the US Constitution as part of the checks and balances in our democratic system. It is a Senate rule, which the Senate can change if it wishes. It enshrines minority veto power over most legislation in the US Congress.
Adam Jentelson in Kill Switch traces the rise of the filibuster and the resultant weakening of the functionality of the US Congress. Senator John Calhoun of South Carolina became the leading spokesperson and tactician for the pro-slavery forces in the South. He espoused a theory called nullification under which the states could nullify the actions of the US Congress to restrict the rights of slaveowners from the South. When push came to shove in a battle over tariffs on imported goods, President Jackson was prepared to use force to collect the tariffs in South Carolina, which found itself with no support for its position.
The filibuster was first used back in the 1840’s by politicians opposed to creating a national bank. The Senate rules had provided for a majority vote to end debates; this had been mistakenly eliminated in 1806 as part of a rules change package presented by retiring Senator Aaron Burr. Nevertheless, throughout the 19th Century whenever the filibuster was used, the majority eventually won by waiting out the filibustering minority.
The filibuster became the tool primarily used by Southern Democrats to block civil rights and voting rights legislation, and Democratic Senator Richard Russell (Georgia) became its leading exponent and practitioner throughout his long Senate career. President Lyndon Baines Johnson broke with his mentor, Senator Russell, to pass the Civil Rights and Voting Rights Acts of the 1960’s. He acted in close concert with Senate Minority Leader Everett Dirksen (R. IL).
As the parties separated ideologically into a conservative party and a liberal party, the filibuster became far more widely used to routinely block legislation, judicial branch appointments and executive branch appointments of the opposing party. In addition, it became easier for individual senators to use. Senators no longer had to hold the floor in days long debate, but simply state they were filibustering. It has now become routine to use it to block the Senate majority from even bringing matters up for a vote. It has become a tool for the minority party to block legislation supported by a majority of Senators unless there is a super majority of 60 votes. It has become the routinized tool of the minority to block legislation for which there is wide public and strong majority support.
The Senate has already decided that filibusters can no longer be used to block judicial and executive branch appointments. It has also decided that budget reconciliation bills are not subject to the filibuster.
Our founders were strongly opposed to the concepts of super majorities and the resulting minority rule. “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.… The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.” Alexander Hamilton in Federalist Paper Number 22.
The Senate needs to reform the filibuster. It could do so in the following ways: 1) repeal it, 2) decide it does not apply to bedrock issues of our democracy such as voting rights and civil rights, or 3) make it rarer and more difficult e.g. require would be filibusters to actually speak in unlimited debate on the floor and or to maintain a quorum of at least 41 Senators on the floor supporting the filibuster.