What is a filibuster? Here is a definition:
In the Senate, a filibuster is an attempt to delay or block a vote on a piece of legislation or a confirmation. To understand the filibuster, it’s necessary first to consider how the Senate passes a bill. When a senator or a group of senators introduces a new bill, it goes to the appropriate committee for discussion, hearings, and amendments. If a majority of that committee votes in favor, the bill moves to the Senate floor for debate.
Once a bill gets to a vote on the Senate floor, it requires a simple majority of 51 votes to pass after debate has ended. But there’s a catch: before it can get to a vote, it actually takes 60 votes to cut off debate, which is why a 60-vote supermajority is now considered the de facto minimum for passing legislation in the Senate.
(Tim Lau. “The Filibuster, Explained.” Brennan Center For Justice. April 26, 2021.)
Let's simplify the debate over the filibuster:
So any bill that has the support of at least 60 senators is, in effect, filibuster-proof, and the Senate can quickly move on to the next steps leading up to a final vote. But most controversial legislation is passed on party-line votes these days, and it’s very rare for parties to have 60 senators. Democrats only have 50 right now.
In the modern Senate, an objecting senator doesn’t actually have to stand there and filibuster endlessly – you might remember Sen. Ted Cruz (R-Tex.) reading “Green Eggs and Ham,” or Sen. Marco Rubio (R-Fla.) quoting Jay-Z and Wiz Khalifa, in the midst of hours-long speeches that brought the Senate to a standstill.
Those were examples of what was required of senators decades ago. Now, a senator can simply indicate her intent to filibuster a bill and cause it to be sidelined.
That means in the current Senate, all it takes is one Republican to object to a Democratic-sponsored bill, and that bill is stopped in its tracks.
(Peter W. Stevenson and Amber Phillips. “The filibuster, explained.” The Washington Post. October 22, 2021.)
As a result, not much deliberation is going on in an institution known as “the world’s greatest deliberative body.”
The filibuster is either a “Jim Crow relic,” according to former president Barack Obama, or a longstanding “unique feature” of the Senate, counters Senate Minority Leader Mitch McConnell of Kentucky.
“During the Obama years, the Republicans have done an unprecedented amount of stonewalling on cabinet-and-below appointees. I would also argue that their war on judicial nominees has been way beyond what went before. Really, if the president nominated God to serve on the D.C. Court of Appeals, Mitch McConnell would threaten a filibuster.”
– Gail Collins, American journalist
Traditionally, the Senate filibuster was reserved for only the most controversial issues, but its use has escalated in recent years, often slowing business in the chamber to a halt.
Some lawmakers acknowledge that the filibuster, which has effectively set a 60-vote supermajority requirement for passing legislation in the Senate, could doom many of the proposals they have championed, including meaningful reforms on issues ranging from health care to climate change to gun control. Behind this dysfunction, the filibuster also has a troubling legacy: it has often been used to block civil rights legislation intended to combat racial discrimination.
“Before the nineteen-seventies, most Republicans in Washington accepted the institutions of the welfare state, and most Democrats agreed with the logic of the Cold War. Despite the passions over various issues, government functioned pretty well. Legislators routinely crossed party lines when they voted, and when they drank; filibusters in the Senate were reserved for the biggest bills; think tanks produced independent research, not partisan talking points. The 'D.' or 'R.' after a politician's name did not tell you what he thought about everything, or everything you thought about him.”
– George Packer, U.S. journalist, novelist, and playwright
History of the Filibuster
The tactic of using long speeches to delay action on legislation appeared in the very first session of the Senate. On September 22, 1789, Pennsylvania Senator William Maclay wrote in his diary that the “design of the Virginians . . . was to talk away the time, so that we could not get the bill passed.”
While there were relatively few examples of the practice before the 1830s, the strategy of “talking a bill to death” was common enough by mid-century to gain a colorful label – the filibuster. Derived from a Dutch word for “freebooter” and the Spanish “filibusteros” – to describe the pirates then raiding Caribbean islands—the term began appearing in American legislative debates in the 1850s.
Historical Note:
In the 17th century, flee-booters raided the Spanish colonies in the Caribbean and earned a bad reputation. They were also called buccaneers and freebooters. The stuff these free-booters stole was called booty.
“I saw my friend standing on the other side of the House filibustering,” commented Mississippi’s Albert Brown on January 3, 1853. A month later, North Carolina senator George Badger complained of “filibustering speeches," and the term became a permanent part of our political lexicon.
The earliest filibusters also led to the first demands for what we now call “cloture,” a method for ending debate and bringing a question to a vote. In 1841 the Democratic minority attempted to run out the clock on a bill to establish a national bank. Frustrated, Whig senator Henry Clay threatened to change Senate rules to limit debate. Clay’s proposal prompted others to warn of even longer filibusters to prevent any change to the rules. “I tell the Senator,” proclaimed a defiant William King of Alabama, “he may make his arrangements at his boarding house for the [entire] winter.” While some senators found filibusters to be objectionable, others exalted the right of unlimited debate as a key tradition of the Senate, vital to tempering the power of political majorities.
Filibusters became more frequent in the late 19th and early 20th centuries, leading to serious debate about changing Senate rules to curtail the practice. At that point the Senate had grown larger and busier, and the sheer amount of work to be done in each session meant that a filibustering senator could disrupt the progress of the body and gain concessions from senators who wanted to get their bills passed.
Pro-slavery senators including John C. Calhoun of South Carolina, who used it to protect the interests of Southern white landowners who depended on slave labor.
In 1917, with frustration mounting and at the urging of President Woodrow Wilson, senators adopted a rule (Senate Rule 22) that allowed the Senate to invoke cloture and limit debate with a two-thirds majority vote. This rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles.
Even with the new cloture rule, however, filibusters remained an effective means to block legislation, since a two-thirds vote was difficult to obtain. Over the next four decades, the Senate managed to invoke cloture only five times.
Filibusters proved to be particularly useful to southern senators who sought to block civil rights legislation. According to a study conducted by political scientists Sarah Binder and Steven Smith, of the 30 measures that were derailed by the filibuster between 1917 and 1994, exactly half of them involved civil rights. Filibusters blocked measures such as anti-lynching bills proposed in 1922 and 1935; the Civil Rights Act of 1957; and legislation that would have prohibited poll taxes and outlawed discrimination in employment, housing, and voting.
(The record for the longest individual speech goes to South Carolina's Strom Thurmond, who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.)
(Sarah A. Binder and Steven S. Smith. Politics or Principle? Filibustering in the United States Senate. November 1, 1996.)
Not until 1964 did the Senate successfully overcome a filibuster to pass a major civil rights bill. Nevertheless, a growing group of senators continued to be frustrated with the filibuster and pushed to change the cloture threshold. In 1975, the Senate reduced the number of votes required for cloture from two-thirds of senators voting to three-fifths of all senators duly chosen and sworn, or 60 of the current 100 senators. Since the early 1970s, senators have been able to use a “silent” filibuster. Anytime a group of 41 or more senators simply threatens a filibuster, the Senate majority leader can refuse to call a vote.
Today, filibusters remain a part of Senate practice, although only on legislation. The Senate adopted new precedents in the 2010s to allow a simple majority to end debate on nominations.
The use of the filibuster, once reserved for only the most controversial issues, has increased dramatically in recent years alongside growing polarization in Washington. There have been more than 2,000 filibusters since 1917; about half have been in just the last 12 years. Critics argue that this increased use has slowed business in the Senate to a halt, often entangling the chamber in procedural maneuvering instead of substantive debate and, ultimately, lawmaking.
Tim Lau of the Brennan Center For Justice speaks of some of the problems related to the modern use of the filibuster ….
“Critics of the modern filibuster have argued that the maneuver undermines the Senate as a governing body and its reputation as a consensus-building chamber. The mere threat of a filibuster silences debate and removes incentives to work toward compromise.
“Overuse of the filibuster magnifies problems of representation endemic to the Senate, where small and large states alike are each represented by two senators. However, the population disparity between the largest and smallest states has increased significantly since the founding. Today, the 26 least populous states are home to just 17 percent of the U.S population. This means that a group of senators representing a small minority of the country can use the filibuster to prevent the passage of bills with broad public support.
“Filibuster abuse also threatens checks and balances between the branches of government. The relative stagnancy of Congress – which is in large part due to the filibuster – has pushed presidents to increase their use of executive power, which in turn often goes unchecked because of Congress’s inability to act.
“Some legal scholars argue that the filibuster may not even be constitutional, citing Article I, Section 5, which states that 'a majority of each House shall constitute a quorum to do business.'”
(Tim Lau. “The Filibuster, Explained.” Brennan Center For Justice. April 26, 2021.)
“In the first 50 years of the filibuster, it was
used only 35 times. But the last Congress alone had 112 cloture
motions filed, plus threats of more.
“This is the tyranny of
the minority.”
– Peter Fenn, political strategist
Conclusion
Caroline Fredrickson – who served as the President of the American Constitution Society from 2009-2019 and became an eloquent spokesperson the progressive movement on issues such as civil and human rights, judicial nominations and the importance of the courts in America, marriage equality, voting rights, the role of money in politics, labor law, and anti-discrimination efforts, rule of law, congressional oversight, and separation of powers, among others – concludes …
“Partial steps to reform the filibuster might improve Senate operations or raise the cost of obstruction. But they would not address the principle flaw of the filibuster, which is that it denies the majority the ability to address national problems free of obstruction. These proposals still require legislation to overcome a supermajority requirement in a body that is already undemocratic.
“With so much riding on the ability of Congress to strengthen our democracy, the Senate cannot be allowed to stand in the way. In the coming months and years, we must anchor our electoral practices and anti-corruption tools more firmly in law. We must ensure voting rights for all Americans, along with a system of representative government that is responsive to people, not just financial interests. For any of these initiatives to stand a chance of passing, the Senate must abolish the filibuster once and for all.”
(Caroline Fredrickson The Case Against the Filibuster.” Brennan Center For Justice.” October 30, 2020.)
Fredrickson explains that the filibuster allows an unmanagable minority “to grind the Senate, and Congress more generally, to a halt.”
Fredrickson offers this …
“During the Obama administration, Senate Republicans took obstruction to a new level, using the filibuster more than ever in history. But the use of the tactic had been climbing even before Obama became president, prompting recent presidents of both parties to use executive orders and other administrative tools to circumvent Congress.
“The Senate is already minoritarian because of the over-representation of small and rural states in the body. For example, California, with 39 million people, gets two senators in Washington, the same as Wyoming, Vermont, and Alaska, each of which is home to fewer than a million people.
“And by 2040, given projected population growth, two-thirds of Americans will be represented by just 30 percent of the Senate. Given that the executive branch has increasingly moved away from legislative initiatives because of Senate obstruction, the filibuster continues to undermine a real democracy.”
(Caroline Fredrickson The Case Against the Filibuster.” Brennan Center For Justice.” October 30, 2020.)
Fredrickson believes the urgent needs of the country – the struggle for democracy and racial justice – must be at the heart of our politics. Chief among these goals must be repair of our democratic systems, which, the pandemic has revealed, are so evidently in need of renewal.
Now, the filibuster has ceased to serve the purposes of allowing contrary ideas to be aired and promoting debate.
Fredrickson explains: “The simple threat of objection simply ends all discussion. Rare is the day when senators actually take the floor to discuss their opposition to a bill and to explain the basis for their filibuster. For those who worry about the right of the minority to speak, other mechanisms allow for more fruitful participation.”
We are beyond tinkering with the filibuster: It is time to abolish the old freebooter altogether.
Five Weird Things Done During Filibusters
Assault with a Spittoon // March 4, 1917
Robert La Follette was an antiwar Republican from Wisconsin who orchestrated a joint filibuster divided between a dozen sympathetic senators, which began on March 3 and stretched into the next day, incensing their colleagues. At one point, La Follette lost his temper and had to be physically restrained from hurling a brass spittoon at Arkansas’ Joseph Robinson.
Southern Cooking 101 // June 12, 1935
Louisiana Senator Huey Long once spoke on the Senate floor for an extended period of time. He wanted to delay bills that favored the wealthy over the impoverished, and he was determined to keep talking until he got his way. And boy, was he annoying about it.
Long recited lengthy excerpts from Shakespeare’s works, discussed completely irrelevant topics with himself, and read aloud tons of recipes that he deemed to be for “pot-likkers.” This nonsense did not conclude for a solid 15 hours.
“I have prepared recipes for many celebrated Louisiana dishes … people up in this part of the country never have learned to fry oysters as well as we have done down our way,” Huey Long said on June 12, 1935. Dreading the possibility that his political rivals might land lucrative New Deal jobs, the Bayou State Democrat prattled on well into the next day, providing detailed instructions for cooking gulf coast delicacies in the process. His filibuster ended when he had to go to the bathroom.
Preparing a Pee Bucket // August 28, 1957
The longest filibuster in the history of the U.S. Senate was delivered by then-Democrat Strom Thurmond of South Carolina. What was it that he so vehemently opposed for over 24 straight hours? The Civil Rights Bill of 1957.
He was well prepared for the big moment, dehydrating in a steam room to avoid going to the bathroom and bringing cough drops and candy to the Senate floor.
Thurmond began speaking at 8:54 PM on August 28, 1957. His speech included renditions of the entire Declaration of Independence, US criminal code, and voting laws of each of the 48 states. The other senators were not thrilled.
After a procedural trick was used at 1 a.m. to allow Thurmond a few minutes for a bathroom break, his supporters were determined that this wouldn’t happen again. Instead, his staff had an intern hold a bucket inside a nearby cloakroom so Thurmond could urinate, if necessary, while keeping one foot on the Senate floor.
Senator Paul Douglas of Illinois even attempted to sabotage the operation by putting a pitcher of fresh orange juice in front of Thurmond, whose aides quickly snatched it and placed it out of reach. Thurmond spoke more than 24 hours, ending at 9:12 PM on August 29. He successfully stalled the passage of the bill, but he didn’t stop it.
The bill passed anyway, but Thurmond’s technique was imitated during a St. Louis city hall filibuster in 2001. When nature called mid-filibuster, Alderwoman Irene Smith’s assistants covered her with a sheet as she peed into a garbage can.
Reading the Phone Book // October 17, 1986
Alfonse D’Amato (R-NY) nearly broke Thurmond’s record while stalling a military appropriations bill in 1986. Struggling to fill 23 and a half hours of speaking time, he resorted to reading aloud from the District of Columbia telephone book.
Singing “South of the Border” // October 5, 1992
Filibusters can be boring, so why not throw in a musical number? Six years after his first filibuster, D’Amato was at it again and chose to break out into song when he took the floor to denounce a proposed tax plan. This one only lasted a measly 15 hours and 14 minutes (at that time, the House adjourned for the year, and the tax bill that the filibuster was targeting died), but an eye-opening digression came when the Republican began singing “South of the Border (Down Mexico Way)” to satirize the outsourcing of American jobs.
(Mark Mancini. “5 Weird Things Done During Filibusters.” https://www.mentalfloss.com/article/53827/5-weird-things-done-during-filibusters. Mental Floss. June 15, 2016.)
“How are senators able to filibuster for over 15 hours?
“Well...Depends.”
No comments:
Post a Comment