A filibuster, or "talking out a bill", is a form of obstruction in a legislature or other decision-making body. An attempt is made to infinitely extend debate upon a proposal in order to delay the progress or completely prevent a vote on the proposal taking place.
The term 'filibuster' was first used in 1851. It was derived from the Spanish filibustero meaning 'pirate' or 'freebooter'. This term had in turn evolved from the French word flibustier, which itself evolved from the Dutch vrijbuiter (freebooter). This term was applied at the time to American adventurers, mostly from Southern states, who sought to overthrow the governments of Central American states, and was transferred to the users of the filibuster, seen as a tactic for pirating or hijacking debate.
Ancient Rome
One of the earliest known practitioners of the filibuster was the Roman senator Cato the Younger. In debates over legislation he especially opposed, Cato would often obstruct the measure by speaking continuously until nightfall.[2] As the Roman Senate had a rule requiring all business to conclude by dusk, Cato's purposefully long-winded speeches were an effective device to forestall a vote.
Cato attempted to use the filibuster at least twice to frustrate the political objectives of Julius Caesar.[2] The first incident occurred during the summer of 60 B.C., when Caesar was returning home from his propraetorship in Hispania Ulterior. Caesar, by virtue of his military victories over the raiders and bandits in Hispania, had been awarded a triumph by the Senate. Having recently turned 40, Caesar had also become eligible to stand for consul. This posed a dilemma. Roman generals honored with a triumph were not allowed to enter the city prior to the ceremony, but candidates for the consulship were required, by law, to appear in person at the Forum.[2] The date of the election, which had already been set, made it impossible for Caesar to stand unless he crossed the pomerium and gave up the right to his triumph. Caesar petitioned the Senate to stand in absentia, but Cato employed a filibuster to block the proposal. Faced with a choice between a triumph and the consulship, Caesar chose the consulship and entered the city.
Cato made use of the filibuster again in 59 B.C. in response to a land reform bill sponsored by Caesar, who was then consul.[2] When it was Cato's time to speak during the debate, he began one of his characteristically prolix speeches. Caesar, who needed to pass the bill before his co-consul, Marcus Calpurnius Bibulus, took possession of the fasces at the end of the month, immediately recognized Cato's intent and ordered the lictors to jail him for the rest of the day. The move was unpopular with many senators and Caesar, realizing his mistake, soon ordered Cato's release. The day was wasted without the Senate ever getting to vote on a motion supporting the bill, but Caesar eventually circumvented Cato's opposition by taking the measure to the Tribal Assembly, where it passed.
United States
The term first came into use in the United States Senate, where Senate rules permit a senator, or a series of senators, to speak for as long as they wish and on any topic they choose, unless a supermajority of three-fifths of the Senate (60 Senators, if all 100 seats are filled) brings debate to a close by invoking cloture.[12]
Procedural filibuster
In current practice, Senate Rule 22 permits filibusters in which actual continuous floor speeches are not required, although the Senate Majority Leader may require an actual traditional filibuster if he or she so chooses. This threat of a filibuster where no floor speech and no quorum is required may therefore be more powerful than an actual filibuster that would require attendance by a quorum of Senators as well as the physical presence of the Senators speaking.
Previously, the filibustering senator(s) could delay voting only by making an endless speech. Currently, they need only indicate that they are filibustering, thereby preventing the Senate from moving on to other business until the motion is withdrawn or enough votes are gathered for cloture.
Preparations
Preparations for a traditional filibuster can be very elaborate. Sometimes cots are brought into the hallways or cloakrooms for senators to sleep on. While in a filibuster the senator talking must remain in the same spot and is only allowed to filibuster twice in a legislative day. A legislative day lasts until the debate is adjourned, which can take days. According to Newsweek:
They used to call it 'taking to the diaper,' a phrase that referred to the preparation undertaken by a prudent senator before an extended filibuster. Strom Thurmond visited a steam room before his filibuster in order to dehydrate himself so he could drink without urinating. An aide stood by in the cloakroom with a pail in case of emergency.
Filibusters have become much more common in recent decades. Twice as many filibusters took place in the 1991-1992 legislative session as took place in the entire nineteenth century.[14]
History
Early use
In 1789, the first U.S. Senate adopted rules allowing the Senate "to move the previous question," ending debate and proceeding to a vote. Aaron Burr argued that the motion regarding the previous question was redundant, had only been exercised once in the preceding four years, and should be eliminated.[15] In 1806, the Senate agreed, recodifying its rules, and thus the potential for a filibuster sprang into being.[15] Because the Senate created no alternative mechanism for terminating debate, the filibuster became an option for delay and blocking of floor votes.
The filibuster remained a solely theoretical option until 1841, when the Democratic minority tried to block a bank bill favored by the Whig majority by using this political tactic. Senator Henry Clay, a promoter of the bill, threatened to change Senate rules to allow the majority to close debate. Missouri Senator Thomas Hart Benton rebuked Clay for trying to stifle the Senate's right to unlimited debate and Clay was unsuccessful in eliminating the filibuster with a simple majority vote.
20th century and the emergence of cloture
In 1917 a rule allowing for the cloture of debate (ending a filibuster) was adopted by the Democratic Senate[16] at the urging of President Woodrow Wilson.[17] From 1917 to 1949, the requirement for cloture was two-thirds of those voting. In 1946 Southern Senators blocked a vote on a bill proposed by Democrat Dennis Chavez of New Mexico (S. 101) that would have created a permanent Fair Employment Practices Committee (FEPC) to prevent discrimination in the work place. The filibuster lasted weeks, and Senator Chavez was forced to remove the bill from consideration after a failed cloture vote even though he had enough votes to pass the bill. As civil rights loomed on the Senate agenda, this rule was revised in 1949 to allow cloture on any measure or motion by two-thirds of the entire Senate membership; in 1959 the threshold was restored to two-thirds of those voting. After a series of filibusters led by Southern Democrats in the 1960s over civil rights legislation, the Democratic-controlled Senate[16] in 1975 revised its cloture rule so that three-fifths of the Senators sworn (usually 60 senators) could limit debate. Changes to Senate rules still require two-thirds of Senators voting. Despite this rule, the filibuster or the threat of a filibuster remains an important tactic that allows a minority to affect legislation. Senator James Strom Thurmond (D/R-SC) set a record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes,[18] although the bill ultimately passed. Thurmond broke the previous record of 22 hours and 26 minutes which Wayne Morse (I-OR) had established in 1953 protesting the Tidelands Oil legislation.
The filibuster has tremendously increased in frequency of use since the 1960s. In the 1960s, no Senate term had more than seven filibusters. One of the most notable filibusters of the 1960s was when southern Democratic Senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by making a filibuster that lasted for 75 hours. In the first decade of the 21st century, no Senate term had fewer than 49 filibusters. The 1999-2002 Senate terms both had 58 filibusters.[19] In the fall of 2007, the 110th Congress's 1st session broke the record, for filibuster cloture votes, topping 70 as of Nov 15, 2007. It was on track to triple the number of such votes in 2008's 2nd session. [20]
Current practice
Filibusters do not occur in legislative bodies in which time for debate is strictly limited by procedural rules. The House did not adopt rules restricting debate until 1842, and the filibuster was used in that body before that time.
Budget bills are governed under special rules called "reconciliation" which do not allow filibusters. Reconciliation once only applied to bills that would reduce the budget deficit, but since 1996 it has been used for all matters related to budget issues.
A filibuster can be defeated by the governing party if they leave the debated issue on the agenda indefinitely, without adding anything else. Indeed, James Strom Thurmond's own attempt to filibuster the Civil Rights Act was defeated when Senate Majority Leader Mike Mansfield refused to refer any further business to the Senate, which required the filibuster to be kept up indefinitely. Instead, the opponents were all given a chance to speak, and the matter eventually was forced to a vote.
Recent Senate history
In 2005, a group of Republican senators led by Senate Majority Leader Bill Frist (R-TN), responding to the Democrats' threat to filibuster some judicial nominees of President George W. Bush to prevent a vote on the nominations, floated the idea of having Vice-President Dick Cheney, as President of the Senate, rule from the chair that a filibuster on judicial nominees was inconsistent with the constitutional grant of power to the president to name judges with the advice and consent of the Senate (interpreting "consent of the Senate" to mean "consent of a simple majority of Senators," not "consent under the Senate rules").[21] Senator Trent Lott, the junior Republican senator from Mississippi, had named the plan the "nuclear option." Republican leaders preferred to use the term "constitutional option", although opponents and some supporters of the plan continued to use "nuclear option".
On May 23, 2005, a group of fourteen senators was dubbed the "Gang of 14," consisting of seven Democrats and seven Republicans. The seven Democrats promised not to filibuster Bush's nominees except under "extraordinary circumstances," while the seven Republicans promised to oppose the nuclear option unless they thought a nominee was being filibustered that was not under "extraordinary circumstances". Specifically, the Democrats promised to stop the filibuster on Priscilla Owen, Janice Rogers Brown, and William H. Pryor, Jr., who had all been filibustered in the Senate before. In return, the Republicans would stop the effort to ban the filibuster for judicial nominees. "Extraordinary circumstances" was not defined in advance. The term was open for interpretation by each Senator, but the Republicans and Democrats would have had to agree on what it meant if any nominee were to be blocked. Senator John Kerry led a failed filibuster against Judge (now Justice) Alito in January 2006, calling Alito's nomination an "extraordinary circumstance."[citation needed]
On January 3, 2007, at the end of the second session of the 109th United States Congress, this agreement expired.
On July 17, 2007, Senate Democratic leadership allowed a filibuster, on debate about a variety of amendments to the 2008 defense authorization bill H.R. 1585, the Defense Authorization bill, specifically the Levin-Reed amendment S.AMDT.2087 to H.R.1585. The filibuster had been threatened by Republican leadership to prompt a cloture vote.[citation needed]
Usually proposals for constitutional amendments are not filibustered. This is because a two-thirds majority is needed to pass such a proposal, which is more than the three-fifths majority needed to invoke cloture. So usually a filibuster cannot change the outcome, because if a filibuster succeeds, the amendment proposal would not have passed anyway. However, in some cases, such as for the Federal Marriage Amendment in 2006, the Senate did vote on cloture for the proposal; when the vote on cloture failed, the proposal was dropped. Some made the accusation that the opponents of the amendment did not want to face political consequences in a midterm-election year for directly voting against the amendment, so they defeated it in a procedural vote instead.
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