Filibuster

BIBLIOGRAPHY

Filibustering is behavior intended to delay the legislative process for strategic gain. In modern politics, filibustering is most likely to occur in the U.S. Senate because senators may speak for as long as they wish. As a result, senators have made speeches lasting several hours in order to slow the progress of bills they oppose. The longest single speech in Senate history is Strom Thurmond’s speech against the Civil Rights Act of 1957. Thurmond spoke for twenty-four hours and eighteen minutes.

Filibustering is not limited to long speeches, however, nor does it occur only in the U.S. Senate. Legislators also filibuster by making procedural motions to force unnecessary votes. Another popular tactic, known as a “disappearing quorum,” occurs when legislators refuse to vote on a bill in the hope that less than a quorum (i.e. the minimum number of legislators who must participate for a legislature to make a decision) of legislators will participate in the vote. During the nineteenth century, members of the U.S. House filibustered often and enthusiastically, a tradition that was suppressed by drastic precedents and rule changes in the 1890s. In 2003 Democrats in the Texas legislature left the state to avoid participating in a vote on altering congressional district boundaries. Since the Texas Constitution requires two-thirds of each chamber to constitute a quorum, the Texas Democrats were able to stall the redistricting plan for months. Finally, filibustering occurs in non-U.S. legislatures as well. For example, filibustering has occurred in Taiwan’s Legislative Yuan during the final days of legislative sessions.

The Senate adopted a “cloture” rule to limit filibustering in 1917. Initially, the rule required a two-thirds majority to limit debate, and if cloture was approved each senator was limited to one additional hour of speaking. After several modifications between 1949 and 1986, the current version of the cloture rule allows a three-fifths majority to limit debate to a total of thirty hours for most issues, with a two-thirds majority necessary for rules changes. Additionally, senators have adopted rules and passed laws exempting a number of key issues, such as trade agreements and key budget legislation, from filibustering.

Despite these limits, filibustering has become increasingly common in the Senate. In the early twentieth century, filibusters were rare and typically occurred at the end of a legislative session. In addition, they were generally directed at budgetary or economic legislation. From the 1930s to the 1960s, filibusters were often used against civil rights legislation, but otherwise they were rare. But since about 1970, filibusters have become commonplace in the Senate. This change coincided with a tactical shift in Senate filibustering. While senators had historically been forced to physically occupy the chamber floor during a filibuster—as depicted in the 1939 film Mr. Smith Goes to Washington —during the 1960s and 1970s filibustering became less overt. Instead, senators typically threaten to filibuster as a strategic ploy, without ever actively filibustering on the Senate floor. Rather than waste the time of the chamber, Senate leaders typically avoid overt filibusters by compromising over the content of legislation and the terms of debate.

More recently, senators have disputed whether it is appropriate to filibuster judicial appointments. During President George W. Bush’s first term, ten out of forty-four nominations for the federal appeals courts were blocked by Democratic senators. Senate Republicans responded by threatening to use the “constitutional” or “nuclear” option of revising Senate precedents to allow majority cloture on judicial nominations. This controversy was defused by a bipartisan agreement in May 2005 to only allow filibusters against judicial nominations in “extreme circumstances.” The seven Republicans and seven Democrats who negotiated this agreement, who tended to be moderates within their party, were known as the “Gang of 14.”

SEE ALSO Congress, U.S.; Thurmond, Strom

BIBLIOGRAPHY

Binder, Sarah A., and Steven S. Smith. 1997. Politics or Principle? Filibustering in the U.S. Senate. Washington, DC: Brookings Institution.

Burdette, Franklin L. 1940. Filibustering in the Senate. Princeton, NJ: Princeton University Press.

Dion, Douglas. 1997. Turning the Legislative Thumbscrew: Minority Rights and Procedural Change in Legislative Politics. Ann Arbor: University of Michigan Press.

Krehbiel, Keith. 1998. Pivotal Politics: A Theory of U.S. Lawmaking. Chicago: University of Chicago Press.

Gregory Koger

FILIBUSTER

A filibuster is the strategic use of delay to block legislation, to force an amendment, or to prompt other action by the U.S. senate. Filibusters occur in the Senate, but not in the U.S. house of representatives, because only the Senate allows unlimited debate on any measure, and no motion exists by which a simple majority of senators can bring any debatable measure to a vote. The only way the Senate can vote on any matter subject to filibuster over the objection of even a single senator is to obtain cloture (an end of debate) under Senate Rule XXII, which requires the votes of 60 senators.

Contrary to popular belief, a filibuster today is seldom conducted through actual extended speech on the Senate floor, but is accomplished rather by a senator threatening to speak indefinitely if a matter is brought before the Senate for a vote. Consequently, a filibuster occurs when senators credibly threaten the Senate leadership that they possess the requisite 41 votes to block cloture under Rule XXII. The widespread use of filibuster threats has effectively increased the number of votes it takes to enact controversial legislation from 51 (or 50 plus the Vice-President's vote) to 60. A majority of senators cannot change this because any revision of Rule XXII requires a vote of two-thirds of the Senate.

The conventional objection to the filibuster is that it is antimajoritarian and thus antidemocratic. The supermajority requirement of Rule XXII, however, is not alone among Senate procedures that are antimajoritarian. Notably, Senate rules empower committees to determine the content of proposed legislation and to decide whether legislation reaches the floor for a vote. Over the years, committees have exercised their power to block or divert action favored by majorities of the House and Senate. The filibuster may counteract the antimajoritarian aspects of the committee system by enabling individual senators to block legislation favored by a committee or to force changes rejected by a committee. Thus, the filibuster may work not so much against majority rule as against other forms of minority power.

The attacks on the constitutionality of the filibuster nonetheless focus on its antimajoritarian character. The Constitution is silent on the topic of filibusters; it neither authorizes nor prohibits them. There are two aspects of the filibuster rule that may be unconstitutional: one is that it requires a supermajority to enact legislation; the second is that a supermajority is required to change the voting rules. As to the first, the strongest arguments against the constitutionality of filibuster are textual. The Constitution specifically requires a supermajority vote in only seven situations. This enumeration of the instances where a supermajority was required suggests that the Framers assumed that a simple majority vote in each house would suffice for all other congressional action. Other constitutional provisions support the argument that the constitution makes a majority vote sufficient for action in the Senate. For instance, the provision specifying that a two-thirds vote can override a presidential veto of legislation suggests that the Framers assumed that a majority vote would be sufficient for action by the Senate.

The problem with this textual argument is that the Constitution explicitly grants the Senate the power to determine its own rules and procedures. The list of instances in which the Constitution specifies that a supermajority is required does not compel the Senate to act by majority vote at all other times. Rather, the Senate is free to adopt its own rules for voting on all other matters.

The stronger argument against the constitutionality of the Senate rules regarding the filibuster lies in the super-majority requirement for changing Rule XXII. Senators can filibuster efforts to amend the Senate rules and Rule XXII requires agreement of two-thirds of those present and voting to obtain cloture on any motion to amend the rules. The Senate that adopted Rule XXII attempted to restrict the ability of all future Senates to change it. The entrenchment of the filibuster violates a fundamental constitutional principle that one legislature cannot bind a subsequent one. The popular sovereignty and legislative accountability upon which American democracy is premised are frustrated when one session of the legislature can prevent or limit action by future sessions, thus preventing the people's elected representatives from enacting laws favored by their constituents.

Catherine L. Fisk

Erwin Chemerinsky
(2000)

(see also: Supermajority Rules.)

Bibliography

Eule, Julian N. 1987 Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity. American Bar Foundation Research Journal 1987:379–459.

Fisk, Catherine and Chemerinsky, Erwin 1997 The Filibuster. Stanford Law Review 49:181–254.

Mc Ginnis, John O. and Rappaport, Michael B. 1995 The Constitutionality of Legislative Supermajority Requirements: A Defense. Yale Law Journal 105:483–511.

fil·i·bus·ter / ˈfiləˌbəstər/ • n. 1. an action such as a prolonged speech that obstructs progress in a legislative assembly while not technically contravening the required procedures: it was defeated by a Senate filibuster in June.2. hist. a person engaging in unauthorized warfare against a foreign country.• v. [intr.] [often as n.] (filibustering) act in an obstructive manner in a legislature, esp. by speaking at inordinate length: several measures were killed by Republican filibustering. ∎  [tr.] obstruct (a measure) in such a way.

filibuster an action such as prolonged speaking which obstructs progress in a legislative assembly in a way that does not technically contravene the required procedures.

The word comes from French flibustier, first applied to pirates who pillaged the Spanish colonies in the West Indies. In the mid 19th century (via Spanish filibustero), the term denoted American adventurers who incited revolution in several Latin American states. The verb was used to describe tactics intended to sabotage US congressional proceedings.

filibuster piratical adventurer. XVI. (flibutor, fleebuter). The ult. source is Du. vrijbuiter FREEBOOTER; later (XVIII) — F. flibustier, succeeded (XIX) by the present form — Sp. filibustero.
Hence as vb. XIX.