Filibuster

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Filibusters

''This article refers to the political act of filibuster. For other uses see Filibuster (disambiguation).

In a legislature or other decision making body, a filibuster is an attempt to extend debate upon a proposal in order to delay or completely prevent a vote on its passage. 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. The term comes from the early 17th century, where buccaneers were known in England as filibusters. This term had evolved from the Spanish filibustero which had come from the French word flibustier, which itself evolved from the Dutch vrijbuiter (freebooter). In the United Kingdom Parliament, a bill defeated by this maneuver is said to have been talked out.

A similar form of parliamentary obstruction practised in the United States and other countries is called "slow walking". It specifically refers to the extremely slow speed with which legislators walk to the podium to cast their ballots. For example, in Japan this tactic is known as a "cow walk". In general it refers to the intentional delay of the normal business of the legislature ^*.

Filibusters in the U.S. Senate

Overview

Under Senate rules, the speech need not be relevant to the topic under discussion, and there have been cases in which a senator has undertaken part of a speech by reading from a telephone directory. Senator Strom Thurmond set a record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes, although the bill ultimately passed. Thurmond broke the previous record of 22 hours and 26 minutes set by Wayne Morse (I-OR) in 1953 protesting the Tidelands Oil legislation.

Preparations for a filibuster can be elaborate. Sometimes cots are brought into the hallways or cloakrooms for senators to sleep on. 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 in the entire nineteenth century. (Frozen Republic, p.198)

History

Early usage

In 1789, the First U.S. Senate adopted rules allowing the Senate "to move the previous question," ending debate and proceeding to a vote. In 1806, Aaron Burr argued that the motion regarding the previous question was redundant, had only been exercised once in the preceding four years (see M. Gold & D. Gupta, 28 Harvard Journal of Law & Public Policy 205 at 215), and should be eliminated. The Senate agreed, and thus the potentiality for a filibuster sprang into being. 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 the political tactic of a filibuster. 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 he was unsuccessful in eliminating the filibuster with a simple majority vote.

The 20th century and the emergence of cloture

In 1917 a rule allowing for the cloture of debate (ending a filibuster) was adopted by the Democrat-controlled Senate at the urging of President Woodrow Wilson[http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm. From 1917 to 1949, the requirement for cloture was two-thirds of those voting.

In 1946 Southern Democrats blocked a vote on a bill proposed by 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 Democrat-controlled Senate ^* in 1975 revised its cloture rule so that three-fifths of the Senate (usually 60 senators) could limit debate. Despite this rule, the filibuster or the threat of a filibuster remains an important tactic that allows a large minority to affect legislation.

Current practice

Filibusters do not occur in legislative bodies in which time for debate is strictly limited by procedural rules, such as the United States House of Representatives. The House did not adopt rules restricting debate until 1842, and the filibuster was used in that body before that time.

In current practice, Senate Rule 22 permits procedural 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 can be just as powerful as an actual filibuster.

Budget bills are governed under special rules called "Reconciliation" which do not allow filibusters. Reconciliation theoretically only applies to bills that would reduce the budget deficit, but it has been used for bills that are only tangentially 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 to the agenda. Strom Thurmond's attempt to filibuster the Civil Rights Act was defeated when Senate Majority Leader Lyndon Johnson 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.

According to a Historical Moments Essay on the U.S. Senate website, the Republican Party was the first to initiate a filibuster against a judicial nominee in 1968, forcing Democratic president Lyndon Johnson to withdraw the nomination of Associate Supreme Court Justice Abe Fortas to be chief justice.

The filibuster today

In 2005, some 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 eliminating filibusters on judicial nominees by declaring current Senate rules allowing such filibusters unconstitutional. Senator Trent Lott, the senior Republican senator from Mississippi, named this plan the nuclear option. Republican leaders later referred to the plan as the constitutional option, though opponents and some supporters of the plan continue to use the term nuclear option.

On May 23, 14 senators – seven Democrats and seven Republicans – led by John McCain (R-AZ) and Ben Nelson (D-NE) brokered a deal to allow three of Bush's nominees a vote on the Senate floor while leaving two others subject to a filibuster. 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 think a nominee was being filibustered that wasn't 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 is open for interpretation by each Senator but the Republicans and Democrats will have to agree on what it means if any nominee is to be blocked. Senator John Kerry led a failed filibuster against Judge (now Justice) Alito in January 2006. This agreement is also scheduled to expire at the end of the second session of the current congress.

Filibusters in Canada

A unique form of filibuster was pioneered by the Ontario New Democratic Party in the Legislative Assembly of Ontario in April 1997. To protest Progressive Conservative government legislation that would create the megacity of Toronto, Ontario, the small New Democratic caucus introduced 11,500 amendments to the megacity bill, created on computers with mail merge functionality. Each amendment would name a street in the proposed city, and provide that public hearings be held into the megacity with residents of the street invited to participate. The Ontario Liberal Party also joined the filibuster with a smaller series of amendments; a typical Liberal amendment would give a historical designation to a named street.

The filibuster began on April 2 with the Abbeywood Trail amendment and occupied the legislature day and night, the members alternating in shifts. On April 4, exhausted and often sleepy government members inadvertently let one of the NDP amendments pass, and the handful of residents of Cafon Court in Etobicoke were granted the right to a public consultation on the bill (the government subsequently nullified this with an amendment of their own). On April 6, with the alphabetical list of streets barely into the E's, Speaker Chris Stockwell ruled that there was no need for the 230 words identical in each amendment to be read aloud each time, only the street name. With a vote still needed on each amendment, Zorra Street was not reached until April 8. The NDP amendments were then voted down one by one, eventually using a similar abbreviated process, and the filibuster finally ended on April 11.

External link: archive of the amendment debates in the Provincial Hansard. The filibuster extends from section L176B of the archive to L176AE; the Cafon Court slip-up is in section L176H, Stockwell rules on the issue of repetition in L176N, and Zorra Street is reached in L176S.

Filibusters in the UK Parliament

Procedural rules in the British House of Commons do not allow Members to speak on any subject, they must stick to the topic of the debate.

In 1983, Member of Parliament John Golding talked for over 11 hours during an all-night sitting at the committee stage of the British Telecommunications Bill. However, as this was at a standing committee and not in the Commons chamber, he was also able to take breaks to eat. The all-time Commons record for non-stop speaking is six hours, set by Henry Brougham in 1828.

The 20th-Century record for the longest non-stop Commons speech is held by Conservative barrister Sir Ivan Lawrence. The then MP for Burton spoke for four hours 23 minutes during the Fluoridation Bill's committee stage on March 6, 1985.

The 21st-Century record was set on December 2 2005 by Andrew Dismore, Labour MP for Hendon. Dismore spoke for three hours 17 minutes to block a Conservative Private Member's Bill, the Criminal Law (Amendment) (Protection of Property) Bill, which he claimed amounted to "vigilante law". ^* Although Dismore is credited with speaking for 197 minutes, he regularly accepted interventions from other MPs who wished to comment on points made in his speech. Taking multiple interventions artificially inflates the duration of a speech, and is seen by many as a tactic to prolong a speech.

Filibustering can have consequences that were not expected or intended. In January 2000, filibustering orchestrated by Conservative Members of Parliament to oppose the Disqualifications Bill led to cancellation of the day's parliamentary business on Prime Minister Tony Blair's 1000th day in office. However, since this business included Prime Minister's Question Time, Conservative Leader William Hague was deprived of the opportunity of a high-profile confrontation with the Prime Minister.

Filibusters in other legislatures on the British model

The Northern Ireland House of Commons saw a notable filibuster in 1936 when Tommy Henderson (Independent Unionist MP for Shankill) spoke for nine and a half hours (ending just before 4 AM) on the Appropriation Bill. As this Bill applied government spending to all departments, almost any topic was relevant to the debate, and Henderson used the opportunity to list all his many criticisms of the Unionist government.

In the Southern Rhodesia House of Assembly, the Independent member Dr Ahrn Palley staged a similar all-night filibuster against the Law and Order Maintenance Bill in 1960.

Fictional representations of filibusters

The 1939 film Mr. Smith Goes to Washington climaxes with a young Junior Senator Jefferson Smith (played by Jimmy Stewart), astonished to discover the corruption of his mentor, stages a filibuster to prevent his expulsion from the chamber long enough to expose the corruption.

On the TV show The West Wing, in episode #39 "The Stackhouse Filibuster", Senator Howard Stackhouse filibusters a health care bill for over nine hours on a Friday afternoon and evening. The resolution of the filibuster, when the West Wing staff uncover the reason behind it, constitutes the climax of the episode.^*

On the TV show Mister Sterling, in episode #9 "Final Passage", Senator Bill Sterling (Josh Brolin) stages a filibuster to block an education bill from passing without an amendment for prisoners' education.

On the TV show Due South, in episode #30 "One Good Man", Canadian Mountie Benton Fraser stages a filibuster to block the eviction by a slum lord of himself and his fellow tenants. Inspired by numerous viewings of Mr. Smith Goes to Washington, the local reverend's favorite film, Fraser fights for his belief that one good man can make a difference.

References

Filibuster: Not Like It Used to Be, Newsweek, Nov. 24, 2003.
The Frozen Republic: How the Constitution Is Paralyzing Democracy. 1997, Daniel Lazare.
Filibuster Derails Supreme Court AppointmentSenate Website
"MP's marathon speech sinks bill" at BBC News, 2 December 2005

External links

Dutch loanwords | Parliamentary procedure | Politics of Canada | United States Senate

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