01 December 2011


This is a post that has been percolating in my junk box mind for some time. I first considered it in November 2008 and then again last year when Scott Brown was elected to the United States Senate. Now, as we enter the run-up to the 2012 general election, the pundits and prognosticators are once again considering whether or not one of the two parties can garner a “filibuster-proof” Senate.

Contrary to the popular belief in certain elements of the Democrat Party, filibuster is not an idea conjured up by George W. Bush. The filibuster dates from at least as early as the Roman Senate. As anyone who has ever seen Mr. Smith Goes To Washington knows, the filibuster was an art form in the early 20th Century. In fact, some of the most effective users of the filibuster in the recent past have been Democrat senators.

In 1946, Southern senators (Democrats all) blocked a vote on a Democrat-proposed bill to establish a permanent Fair Employment Practices Committee, an early version of what ultimately became the EEOC. The filibuster lasted weeks, and after a failed cloture vote, the bill was withdrawn even though there were sufficient votes to pass the bill itself.

In 1953, Senator Wayne Morse (I. Or.) set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. Senator Strom Thurmond (D.SC) broke this record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes. The bill ultimately passed. One of the most notable filibusters of the 1960s occurred when southern Democrat senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by undertaking a filibuster that lasted for 75 hours, which included a 14 hour and 13 minute address by Senator Robert Byrd. The Senate ultimately invoked cloture and the bill passed.

The filibuster in the Senate actually came about as a result of a rules change in 1806. Prior to that, debate could be ended by any senator who made a motion "to move the previous question." Such a motion was not debatable, took precedence, and, if adopted by the body, led to an immediate vote on the pending matter. (For any Presbyterians out there, yes, there were two votes. The first on the motion to move the previous question and the second on the actual matter under debate. Just like in your most recent meeting of the presbytery.)

No substitute means of forcibly ending debate was adopted raising the possibility of filibuster. (Interestingly, the House rules also allowed for filibuster until 1842, when a permanent rule limiting the duration of debate was created. This occurred, in part, because of the growth in the size of the House as population grew and more States were added to the Union.)

As a result, a senator, or a group of senators may speak for as long as they wish and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" (usually 60 out of 100 senators) brings debate to a close by invoking cloture under Senate Rule XXII. The procedure for "invoking cloture," or ending a filibuster, is as follows:

• A minimum of sixteen senators must sign a petition for cloture.
• The petition may be presented by interrupting another Senator's speech.
• The clerk reads the petition.
• The cloture petition is ignored for one full day during which the Senate is sitting. For example, if the petition is filed on Tuesday, it is ignored until Thursday.
• On the second calendar day during which the Senate sits after the presentation of the petition, after the Senate has been sitting for one hour, a "quorum call" is undertaken to ensure that a majority of the Senators are present.
• The President of the Senate or President pro tempore presents the petition.
• The Senate votes on the petition; three-fifths of the whole number of Senators (sixty when there are  no vacancies) is the required majority; however, when cloture is invoked on a question of changing the rules of the Senate, two-thirds of the Senators voting (not necessarily two-thirds of all Senators) is the requisite majority. (This is commonly referred to in the news media as a "test vote" because if cloture is not passed, modern practice is to simply not bring the bill to the floor for debate.)

After cloture has been invoked, the debate is tightly condensed:

• No more than thirty hours of debate may occur.
• No Senator may speak for more than one hour.
• No amendments may be moved unless they were filed on the day in between the presentation of the petition and the actual cloture vote.
• All amendments must be relevant to the debate.
• Certain procedural motions are not permissible.
• The presiding officer gains additional power in controlling debate.
• No other matters may be considered (on that track) until the question upon which cloture was invoked is disposed of.

After civil rights filibusters in the 1960s, the Senate adopted a "two-track system.” Before the introduction of tracking, a filibuster would stop all Senate business. Tracking permits the majority leader – with unanimous consent or the agreement of the minority leader – to have more than one bill pending on the floor as unfinished business. Under the "two-track system", the Senate can designate specific periods during the day when each particular matter will be considered. This in and of itself limits the most significant effectiveness of the filibuster, i.e., bringing the Senate to a halt.

Nonetheless, the parties, especially the Democrats, seem to be terrorized by the prospect of a filibuster. As a result, since the 1970s, cloture has generally become a pre-emptive rather than an offensive weapon, i.e., being used in deciding whether to call up a bill rather than being used in the middle of debate. And that puzzles me.

Why are the parties so afraid of filibuster? With a couple of exceptions, they are not successful in blocking adoption of the proposed legislation. I can think of two reasons.

First, during a filibuster, more of the people may actually pay attention to what is going on in Washington. They may actually agree with the dissidents and may contact their senators with requests that they vote with the filibusterers. I am almost certain that that is why Harry Reid opted to bring the House version of Obama-care up for a procedural vote rather than allow a filibuster (which became possible when Scott Brown was elected to replace Ted Kennedy) that might have led to defections in his own caucus.

Second, both houses of the Congress have adopted such short work weeks—usually Tuesday through Thursday—that a filibuster would interfere with the more serious concerns of most members: going home to raise money for the next election. Who wants to sleep on a cot in the cloakroom when he or she could be adding to campaign coffers.

We as citizens ought be appalled. If a proposed bill is so important to the good of the Republic, the filibusterers will look silly. (I almost wrote “look like idiots.” The I remembered Mark Twains’ famous observation, “Reader, suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.”)

And if it is so bad for the Republic that only the ruling class wants it, the filibusterers may arouse public sentiment and actually get the voters to give appropriate direction to their elected senators.

So, forget this cowardly abridgement of the kind of free speech we really need. Let ‘em talk.

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