The Filibuster (Part 4 of 4)

Defense Against the Filibuster

It is only appropriate when talking about the filibuster to mention the tools used against it. While it could come to a simple battle of wills, more often than not there are tactics that are employed to stop filibusters.

If a filibuster is being employed or threatened to be employed, there is only one thing the majority party can do to directly stop filibusters. By invoking Senate rule 22, the debate has a cap of thirty hours. Enacted in 1917, cloture requires a super majority of three-fifths which in the current Senate means sixty votes. This cap of thirty hours does include the time spent on quorum calls, voting on amendments, as well as debate. [1] The debate seems obvious, but what is really important is that cloture effectively stops all forms of filibuster that were mentioned in the previous section. the minority can still obstruct all they want, but it only acts a disservice to themselves. The best the minority can do is to use the time wisely in order to draw public attention to issues or maybe even persuade the majority although the latter is much less likely. The other great thing about cloture is that if it fails the first time, the majority can try as many times as they wish. [1] Due to the partisanship in the Senate, cloture votes now average fifty-two per Congress [1] which is why the Senate is sometimes called the 'Sixty vote majority'.

Oddly enough the filibuster can be stopped by forces outside the Senate. If the House passes a budget bill through reconciliation, then the rules change for the Senate. A bill cannot be filibustered, for the time limit is twenty hours which is ten hours less than the cloture motion. Also amendments proposed to the bill must be germane and deficit neutral. The other great aspect of reconciliation for the majority is that it only requires a simple majority in order to pass. [2]

The last defense tactic that will be discussed is - oddly enough - a filibuster brought forth by the majority party! The following video demonstrates what is called "the reverse filibuster".


The great irony with this event is that the filibuster has always been the sword of the minority. Taking place in November 2003, the Republican Majority was fed up with the Democratic Minority constantly filibustering Republican President George Bush's lower court nominations. This filibuster served two purposes: bring to light what the minority party was doing and - if the majority was really lucky - wait for the minority to fall asleep or stop paying attention, so they can quickly confirm the nominees. [3] Unfortunately for the Majority, this failed on both of its goals. No judge received a single vote and there was no public outcry. The reverse filibuster was seen simply as theater between the two sides. [4] It is unlikely that the majority will use this tactic ever again.

Conclusion

The filibuster is without a doubt the most unique and powerful tool in the Senate. From its early days in the Roman Senate to today, the power of the filibuster has had an astounding impact on the political world. Granting the minority such power to rival the majority has prevented good legislation, stopped bad legislation, and even provided a few laughs. Giving the Senate defense tactics to use against the filibuster has only further intrigued the political process. It is safe to say that without the filibuster, the United State of America would be much different from what we know today.

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References:

1. Sinclair, Barbara (2007). Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress. Washington D.C.: CQ Press (pp. 67 - 69)
2. Oleszek, Walter J. (2007) Congressional Procedures and the Policy Process. Washington D.C.: CQ Press (pp. 68-69)
3. Associated Press (2003, November 12) Senators Prepare for All-Night Judges Marathon. http://www.foxnews.com/story/0,2933,102813,00.html
4. Smith, Steven S., Roberts, Jason M., Vander Wielen, Ryan J. (2009) The American Congress. New York, NY: Cambridge University Press (pp. 327)
   

The Filibuster (Part 3 of 4)

How to Filibuster

As explained in the previous section, whenever a piece of legislation arises that a senator wants to delay, modify, or defeat; the senator’s best option is to filibuster. There are several ways to filibuster, but the first action the senator should take is to threaten to filibuster. The Majority Leader who has limited time to work must take any credible threat of a filibuster as a filibuster itself. [1] This is actually the most common form of filibuster and happens on an almost weekly occurrence. If the Majority Leader is unsuccessful in finding sixty votes (needed to make a cloture call which will be discussed in the next section), then there is a very good chance that the Majority Leader will effectively drop the bill. [1] This is the best possible outcome because the filibuster is silent and doesn’t waste the minority’s time.

In the event that the Majority Leader does not take the threat of a filibuster seriously, then the senator must prepare to filibuster the unwanted legislation. The senator will have to gather allies and as much information over the issue as he can get. It may be necessary to prepare physically. When Senator Thurmond filibustered for over twenty-four hours, he spent a few hours in a sauna in order to avoid having to use the restroom. [2] In order for a filibuster to be truly successful, the filibuster must outlast the majority’s patience. Even though Senator Thurmond filibustered for over twenty-four hours, no one else was able to take his place and the Civil Rights Act of 1957 passed. The Civil Rights Act of 1964 – while still a landmark achievement – had to be modified before a super majority could be obtained in order to end the over fifty day filibuster.

Once all of the preparations have been made, now it is time to filibuster. While holding the floor for an indefinite amount of time is the most famous way of filibustering, there are several tactics that can be employed in order to further obstruct the process. There are several parliamentary procedures besides the debate that can be obstructed in order to further sidetrack the bill.

Quorum calls and objecting to unanimous consent are fairly easy methods of obstruction that while are easy to defend against can be quite a nuisance especially if there are many other senators that join. The following video demonstrates just how much time a quorum call can take.



Another brilliant aspect of these tactics is that it is almost impossible to tell if these tactics are being used for the purpose of obstruction or not. Senator Rick Santorum (R-P.A.) may have supported the amendment but wanted a quorum call for some other purpose than obstruction. There are several other motions like these that do nothing more than cause an annoyance, but when combined with the annoyances of other senators, these can become an effective filibuster.

The Amending Process is another venue to try a filibuster. Unless dispensed by unanimous consent, every measure can have an unlimited amount of amendments added to it. The Senate cannot dispose of any filed amendments before they are called up for floor consideration. [1] Similar to extended debate, this method is a battle of wills and is often threatened.

Lastly, the most famous version of the filibuster is the extended debate where a senator tries to talk for a very long time. While this is a tool of obstruction, it can also be used a last resort to rally more senators to the minority’s cause and also to bring attention to issues and concerns that the minority has with the bill. The extended debate does not have to include relevant material. Many of the famous extended debates involve senators reading Shakespeare, cooking recipes, and even legislation completely irrelevant to the bill being filibustered. [1] The main problem with this approach is of course the amount of time and physical fortitude this process can take. In the end, what matters is how many supporters the minority has and who is willing to give in first. Senator Thurmond was able to filibuster for over twenty-four hours. No one else came to his aid, so two hours later, the bill he was trying to filibuster still passed. The great irony is that while the filibuster does give any senator leverage over another, it is only a viable threat if a senator is able to form a large enough minority in order to be a true threat verses an annoyance.

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References:

1. Oleszek, Walter J. (2007) Congressional Procedures and the Policy Process. Washington D.C.: CQ Press (pp. 217 - 240)
2. Associated Press (2003, June 27) Thurmond Holds Senate record for Filibustering. http://www.foxnews.com/story/0,2933,90552,00.html
   

The Filibuster (Part 2 of 4)

Reasons For Filibustering

It is often said that the House of Representatives favors the majority whereas the Senate favors the minority. The reason why this is true is because of the power to filibuster. Every senator is practically equal in power, so even one senator has the power to subvert legislation favored by the rest of the senators. This is also the reason why the filibuster will never truly go away. If the majority tries to change the rules to where senators do not have the freedom of unlimited debate, then any senator can even filibuster that motion. [1] In describing this power in the minority, political scientist Richard E. Fenno Jr. once said, “Every member of the Senate has an atomic bomb and can blow up the place. That leads to accommodation.” [2]

Before the reasons to filibuster are discussed, it would be wise to take a look at the Senate minority. When thinking of the minority in the Senate, one would typically think of the minority party. While this can often be the case, it can embody any like-minded senators from across the aisle as shown in the following video.



In the video, Senators Daniel Patrick Moynihan (D-N.Y.) and Alfonse Marcello D’Amato (R-N.Y.) teamed up to filibuster for over fifteen hours in an effort to amend a tax bill to the current legislation that would hopefully prevent a typewriter company from moving eight hundred seventy-five jobs from Upstate New York to Mexico. The company wanted to do this in order to bring down wage costs. While Senator Moynihan doesn’t speak in this clip, it was important to point out that both senators were behind this tax bill amendment demonstrating a bipartisan minority.

There is a greater significance to a bipartisan minority. Some people believe that the prerogative of extended debate was to prevent change. This myth was perpetuated by the belief that this reflected the framers intent. [4] The constitution was created to be a living-document - or in other words ‘allowed to change’. It seems apparent that the actual intent of this prerogative was to further give voice to any minority regardless of party affiliation. The filibusters against the 1964 Civil Rights Act were led by Democrat and Republican senators from the South. [5] Also from the clip, both senators were from New York. Good or bad, unintended or fully-intended; the filibuster actually encourages bipartisanship and forces senators to reach across the aisle in order to ensure the passage of legislation.

Another interesting note about the video is that this filibuster was not intended to prevent the legislation from passing. It was employed in an effort to modify the legislation. Too often people think of a filibuster as simply stopping the passage of legislation like in Frank Capra’s 1939 classic movie, Mr. Smith Goes to Washington. Some would argue that Senator D’Amato was trying to put on a show in order to win a tight reelection that year (which he did by ninety thousand votes compared to the six million cast) [3], but regardless if he had legitimate concern for the workers of the typewriter factory, the point is that the filibuster was not used to simply prevent passage. Even though the senator’s plan failed, it did serve a purpose by trying to highlight the issue in the public spotlight.

The most famous example of what people mostly believe a filibuster is used for is the 1964 Civil Rights Act. This act like every other measure faces the possibility of two filibusters: one on the motion to take up the legislation and the other on the consideration of the bill itself. [2] This act alone consumed sixteen days on the motion and a staggering fifty-seven days on the passage. The 1957 Civil Rights Bill was no different for Strom Thurmond’s (D-S.C.) filibuster lasted over twenty-four hours straight! Senator Thurmond like several other senators opposed the Civil Rights Acts because they believed it infringed on state’s rights. [5] The Civil Rights Act of 1964 did eventually pass, but it had to be modified in order to get enough votes for a super majority. This event also demonstrates the extremes a minority may be willing to go in order to prevent passage; furthermore, this is why a threat of filibuster alone can halt legislation.

For the exception of the civil rights legislation before the 1970’s, the use of the filibuster was incredibly rare reserved only for issues of grave national importance. Recent decades have seen an increase in the overall number of filibusters and threat of filibusters from both sides of the political spectrum. The threat of a filibuster has even become a weekly occurrence and for as trivial reasons as a senator’s travel schedule. [2] This has been happening for several reasons. New senators tend to have an agenda of there own and with the increase of partisanship, this has only made the need for bipartisanship that much harder. Unlike the Civil Rights Act of 1967, a lot of issues aren’t that extremely important, and with the limited time that senators can afford, any indication of a filibuster can exercise significant leverage. Interestingly, political scientist Richard F. Fenno Jr. believes that these political entrepreneurs coupled with high media visibility are afraid to compromise and only have incentives to obstruct. Since obstruction is very easy to accomplish, if any senator doesn’t get their way, it is seemingly in their best interest to obstruct. In fact with party cohesiveness at an all time high, full-scale party-backed filibusters become even more of a threat. This is why - except for in some cases when a party commands a super-majority – bipartisanship is very important. Party leaders try “shuttle diplomacy” – which is diplomacy using an intermediary – between the two parties in order to avoid the possibility of a full-scale filibuster. [2]

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References:

1. Smith, Steven S., Roberts, Jason M., & Vander Wielen, Ryan J. (2009) The American Congress. New York, NY: Cambridge University Press (pp. 45)
2. Oleszek, Walter J. (2007) Congressional Procedures and the Policy Process. Washington D.C.: CQ Press (pp. 10, 238-240)
3. The United State Senate. Old-time Filibuster Revived. http://www.senate.gov/artandhistory/history/minute/old_time_filibuster_revived.htm
   
4. Sinclair, Barbara. (2007) Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress. Washington D.C.: CQ Press (pp. 6)
5. The United States Senate. Civil Rights Filibuster Ended. http://www.senate.gov/artandhistory/history/minute/Civil_Rights_Filibuster_Ended.htm
   

The Filibuster (Part 1 of 4)

Introduction

One of the most famous yet often misunderstood tools of the United States' Senate, the filibuster has been responsible for shaping events in the history of the United States while also frustrating both sides of the political spectrum. The term 'filibuster' originates from the anglicized Dutch word for 'free-booter', so a 'filibusterer' was a pre-colonial pirate. [1] Today's usage of the term 'filibuster' simply refers to a moment when a legislator (almost always a senator) delays the legislative process on a bill in order to achieve some political goal. While to some it may seem obvious as to how a filibuster has changed from a pirate to a senator speaking for a very long time, no one really knows for sure how the term evolved. One of the first documented usages of the term in the political sense was when the Kansas-Nebraska Act was filibustered in 1854 [1], so the political usage of the term is relatively new.

Typically, most people think of a filibuster as a senator talking for a very long time in order to prevent a bill from passing. According to page two hundred thirty-seven in his book, Congressional Procedures and the Policy Process, Oleszek writes, “a filibuster in the fullest sense employs every parliamentary maneuver and dilatory motion to delay, modify, or defeat legislation.” What this means is that speaking nonstop is only one way to filibuster a bill and that the filibuster isn’t solely employed for the purpose of defeating a bill. More importantly, it is difficult to determine when extended debate becomes a filibuster, for no one actually declares a motion to filibuster. Nowadays the threat of the filibuster is more prevalent than the actual implementation. Since the threat of a filibuster alone can create havoc for the Majority Leader, the filibuster can be considered ‘silent’. [3]

The reason why a filibuster even exists is because when the rules of the Senate were adopted in 1789, the Senate’s small size permitted the freedoms of unlimited debate and opportunity to offer amendments – germane or not. [4] Now with a Senate of one hundred members, a filibuster is a much greater threat; however, in 1917 Rule XXII – the cloture rule – gave the majority some power over threat of filibusters although unrestricted debate was of much less concern during the nineteenth century. [3] There have been other measures since then to combat the threat of filibusters including help from the House of Representatives with the passing of the Congressional Budget and Impoundment Control Act of 1974 [2], but they are still one of the greatest bargaining chips any senator has in the U.S. Senate.

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References:

1. Smith, Steven S., Roberts, Jason M., & Vander Wielen, Ryan J. (2009) The American Congress. New York, NY: Cambridge University Press (pp. 224)
2. Sinclair, Barbara. (2007) Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress. Washington D.C.: CQ Press (pp.196)
3. Oleszek, Walter J. (2007) Congressional Procedures and the Policy Process. Washington D.C.: CQ Press (pp. 237)
4. The United States Senate. (2010, April 10). Senate Legislative Process. http://www.senate.gov/legislative/common/briefing/Senate_legislative_process.htm