Filibuster

A filibuster is an action that a senator or a group of senators can take to block or delay passage of a bill or law. Such a bill or law is typically favored by the majority and is one that it is expected will pass. The most common filibuster tactic is a significantly long speech that can go on for several hours before coming to a close. Despite being seemingly unethical, filibusters follow the Senate’s rules. To explore this concept, consider the following filibuster definition.

Definition of Filibuster

Noun  

1. An action taken by a senator or group of senators, such as a prolonged speech, that delays or prevents a bill or law from being heard, but which stays within the rules established by the Senate.
2. The speech itself or a series of speeches given for this purpose.
3. A member of legislature who makes one of these speeches.

Verb

1. To hinder legislation by being obstructive, typically by making a lengthy and dull speech.

Origin

1580-1590       Dutch vrijbuiter (pirate)

What is a Filibuster

A filibuster is an action that a member of the senate can take, normally consisting of a speech that goes on for several hours, or another delaying tactic, with the intention of obstructing a bill or law that is up for a hearing. Filibusters act as legislative roadblocks that make it more difficult for a bill or law to be heard, so that it is more difficult to get them passed.

Filibusters fall within the Senate’s rules because the Senate’s policy is such that its members have the right to speak on any issue for as long as they feel is necessary, without interruption. As a result, there is no time limit on how long a member of the Senate can speak, and no one is permitted to interrupt that senator when he or she has the floor.

Filibuster is most commonly used by someone on the minority side of the vote, who would oppose the bill or law should it be put up for vote. The logic is that, if the majority has to listen to hours upon hours of boring speeches, they will eventually give in and, either withdraw the bill or law, or strip it of the key points deemed unacceptable by the minority finds.

Filibuster Rules

Senate filibusters came into existence for a very good reason: they were essentially used as a guarantee that the minority voice would be given the opportunity for their side to be heard before the Senate ultimately reached a decision on an important issue.

Despite the fact that the filibuster was initially conceived in 1806, and that the first filibuster didn’t take place until over 30 years later, filibusters were, and still are, incredibly rare. Case in point: the first filibuster to occur during the 1900s wasn’t until 1957 – over 100 years since the time it was last invoked.

Virtual Filibuster

Interestingly, the Senate revised the filibuster rules in 1975 in such a way that it actually made it easier for senators to filibuster. Simply, they could conduct other matters of business while a filibuster was technically still going on, so a senator did not have to focus solely on delivering a daylong speech; they could be getting other things done while they continued to run the debate. This loophole is known as the “virtual filibuster.”

Virtual filibusters allow senators to put their own personal political agendas ahead of other (and potentially more important) matters in the Senate, which results in even the most routine of Senate proceedings being politicized when they otherwise would have never been affected by such matters.

Rule 22 – Cloture

Per the filibuster rules, the only way that the termination of a filibuster can be forced is when members of the Senate enact a cloture, or what is known as “Rule 22.” A cloture is a procedure that is employed for the purpose of ending a debate in a legislative assembly (filibuster) by way of taking a vote. President Wilson came up with the idea, and the procedure to establish the process was finalized in 1917.

Upon the approval of a cloture, the debate is then limited to a final 30 hours on the topic before the filibuster must end. This termination can happen in several ways, such as the Senate can choose to adjourn the matter, take a recess, or postpone the matter indefinitely.

However, a cloture is not the “quick fix” that it may seem to be, since the cloture process is a laborious one. Filibuster rules dictate that first, two days must pass since the filibuster began for a cloture to be allowed. Then, a minimum of 16 members of the Senate must sign either a cloture motion or a petition that contains the following language:

“We, the undersigned Senators, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, hereby move to bring to a close the debate upon (the matter in question).”

From there, another two days must pass before the Senate can vote on the cloture. When these two days are up, at least 60 of the 100 members of the Senate (three-fifths of its members) must vote in favor of the cloture. The final roll call for the vote may not come, however, until after the Senate has endured several additional hours of seemingly unending debate, and even then, it is not a guarantee that the filibuster will end simply because a cloture has been approved.

An example of a cloture being rejected occurred in 1976, when James Allen of Alabama, and Roman Hruska of Nebraska, found a loophole allowing them to “filibuster by amendment.” Under the Senate’s rules, any relevant or connected amendments to a bill, which are still pending, can still be discussed, even after a cloture has been approved.

In addition, each proposed amendment must go through a roll call vote process; all Allen and Hruska had to do to maintain their roadblock was make sure that there were several amendments to consider. After roll call votes were taken 70 different times – at a minimum of 15 minutes per roll call – the sponsors of the bill recognized that the filibuster would not be ending any time soon. They admitted defeat, and ultimately supported the amendment that Allen and Hruska had initially proposed.

Filibuster History

The filibuster was unwittingly created in 1789 during a revamping of the Senate’s rules at former Vice President Aaron Burr’s suggestion, which removed a provision allowing any member to call for a vote, thus ending the debate. Because the Senate never actually specified in the new rules another way to end a debate, the filibuster emerged as a way to delay and/or block Senate votes. It was not until 1837, however, that a senator took advantage of the oversight, and engaged in the first filibuster. From that time, filibusters have been used throughout history, albeit sparingly.

For instance, in 1841, the Democratic minority tried to block Kentucky Senator Henry Clay’s bank bill. As a result, Clay threatened to edit the Senate’s rules so that debates would be forced to conclude once the majority’s votes were in. Thomas Hart Benton, a senator from Missouri, reprimanded Clay, accusing him of trying to silence the otherwise unlimited debates that the Senate was permitted to enjoy.

Record-Setting Filibuster

It was not until over 100 years later, however, that the record would be set for the longest filibuster in United States history. Senator Strom Thurmond of South Carolina spoke for 24 hours and 18 minutes against the Civil Rights Act of 1957. The enacting of the Civil Rights Act of 1957 was symbolic of Congress’ support for the decisions the Supreme Court made in Brown v. Board of Education – the 1954 case that ultimately led to the desegregation of black and white children in public schools.

Senator Rand Paul from Kentucky set a more recent record in filibuster history when he engaged in a filibuster on March 6 and 7, 2013 that lasted a total of 12 hours and 52 minutes. Paul was lauded for his efforts by Tea Party members and libertarians, and his filibuster focused on questioning the government’s usage of drones, and to raise awareness of drones that could potentially be used to kill United States citizens on their own soil.

Paul particularly wanted Attorney General Eric Holder to give him a written guarantee that an attack of this nature would never occur. While Rand had said at the beginning of his speech that he would speak for as long as it took to get this guarantee, he ultimately ended the filibuster due to his need to use the bathroom.

Later that year, Texas senator Ted Cruz filibustered against the Affordable Care Act (“Obamacare”) on September 24, 2013, and Cruz currently holds the fourth-longest record in filibuster history, clocking in at 21 hours and 18 minutes.

Perhaps the most famous example of filibuster in popular culture is that which was engaged in by Jimmy Stewart’s character in the film Mr. Smith Goes to Washington. In the film, Senator Jefferson Smith (Stewart) filibusters in an effort to stand up to the corrupt Senator Joseph Paine (Claude Rains), Smith’s former mentor.

Other Important Moments in Filibuster History

In 1872, Vice President Schuyler Colfax ruled that a presiding officer of the Senate could not stop a Senator from saying anything that the Senator considered relevant to the issue at hand.

• The first use of Rule 22 came in 1919, when the Senate chose to terminate the debate over the Treaty of Versailles.
• In 1935, Louisiana Senator Huey Long tried and failed, after 15 hours and 30 minutes of speaking, to stop the passage of a New Deal bill that proposed to give jobs to political opponents. Long’s speech was especially colorful, making use of everything from Shakespearean plays to oyster recipes.
• In 1953, Wayne Morse set a record (before Thurmond surpassed it a mere four years later) of filibustering for a straight 22 hours and 26 minutes, while debating over tidelands oil registration.
• Another example of filibuster, and one pitted against yet another Civil Rights Act, came in 1964, when West Virginia Senator Robert Byrd debated unsuccessfully in opposition to the Civil Rights Act of 1964, a landmark piece of legislation that made it a criminal act to discriminate against someone based on their race, color, religion, sex, or national origin.
• In 1968, Abe Fortas was due to succeed Earl Warren to become the new Chief Justice of the U.S. Supreme Court, but a filibuster was enacted, and various ethical issues soon came to light that caused Fortas to resign.

Filibusters are still rather rare, with only 1,300 instances of them occurring since 1917, and with most of those instances taking place in recent years, with a dramatic uptick during the 1970s. As of 1990, there had only been 413 Senate filibusters since its inception in 1789. Though, in the last 12 years alone, filibusters have been used a startling 600 times. Rather than invoking a filibuster to extend a debate or stall a vote, today’s senators rely on filibustering to prevent bills from ever being heard at all by filibustering against motions to proceed.

Senate Filibuster

Back in the infancy of the Senate filibuster, both House Representatives and Senators could invoke a filibuster. However, as the House of Representatives increased in size over the years, revisions to their rules imposed strict limits on their debates. In modern times, filibusters do not exist in the House of Representatives, because their debates are limited to a set amount of time. The Senate has no such time limitation.

Related Legal Terms and Issues

• Cloture – A procedure for ending a debate, in a legislative assembly, and taking a vote.
• House of Representatives – The lower house of the United States Congress.
• Senate – The smaller, upper assembly of the United States Congress.