THE FILIBUSTER

The filibuster in the United States Senate imposes an effective superm ajority requirement for the enactment of most legislation because sixt y votes are required to bring a measure to a vote over the objection o f any senator. Filibusters are ubiquitous but virtually invisible, for the contemporary Senate practice does not require a senator to hold t he floor to filibuster; senators filibuster simply by indicating to th e Senate leadership that they intend to do so. The prevalence and invi sibility of this ''stealth filibuster'' dramatically affects which leg islation is passed and which nominees are confirmed. The stealth filib uster also raises serious constitutional questions. Summarizing the hi storical development of Senate filibusters, Professors Fisk and Chemer insky show that the nature and effects of filibusters have changed sig nificantly as the Senate has grown larger and busier. They argue that, although dilatory debate has a history, the modern stealth filibuster is in significant respects unprecedented Professors Chemerinsky and F isk also assess the effects of the filibuster on Senate practice in li ght of empirical and public choice theories of congressional behavior. Based on this, they conclude that the filibuster is not alone among c ongressional procedures in being antimajoritarian and that it may coun teract the antimajoritarian aspects of other congressional procedures. Professors Fisk and Chemerinsky then discuss the constitutionality of the filibuster. They first conclude that a judicial challenge to the Senate rules that permit it would be justiciable if brought by proper plaintiffs. They then conclude that, although the filibuster itself is not unconstitutional, the Senate rule that prohibits a majority of a newly elected Senate from abolishing the filibuster is unconstitutiona l because it impermissibly entrenches the decisions of past Congresses .