Feature

The fine art of the filibuster

Senate Democrats say they will use a tactic called the filibuster to block any nominee to the U.S. Supreme Court that they deem too conservative. Is that really permissible under Senate rules?

What is a filibuster?It’s a procedural maneuver by a senator or group of senators to block the party in power from getting its way. To launch a filibuster, a senator simply asks to be recognized by the presiding officer, then launches into a speech denouncing the offending legislation—and keeps right on talking and talking, about anything and everything. This verbal barrage is purposely designed to temporarily paralyze Senate business, and prevent the disputed matter from being put to a vote.

Is this tactic in the Constitution?No. Filibusters were created by a quirk in Senate rules. When Congress first took office, in 1789, both the House and Senate allowed any speech or debate to be cut off by a simple majority vote. The House still retains that rule. But in 1806, Vice President Aaron Burr persuaded senators that limiting debate was against the spirit of that more august chamber. The rule was dropped. It took some years, though, before senators realized that boring people to the point of tears could actually be used as a political weapon.

Who filibustered first?Some historians believe it was John Randolph of Virginia, who, in 1825, stood and refused to yield the Senate floor during a debate on a bill that he said favored the industrial North. In 1841, Democrats refused to yield the floor for three weeks to keep the Whigs, who had just become the majority, from firing Democrats on the federal payroll. After that, outnumbered senators realized that the rules on debate could be used to their advantage, and the tactic was used fairly regularly in the 1840s, though it still had no name. A Washington wag whose name is lost to history solved that problem after reading newspaper accounts of Caribbean pirates called “filibusteros” (the Spanish term was a corruption of the Dutch words for “free” and “booty”). These particular bandits specialized in kidnapping people and holding them for ransom. Soon, the Senate’s legislative kidnappings were being called “filibusters,” and the name stuck.

How has the tactic been used?At times, shamelessly. Under Senate rules, senators can talk about anything when they have the floor, not just the matter at hand. When Huey Long of Louisiana spoke for 15 hours and 30 minutes against New Deal legislation, in 1935, he offered up recipes for pot likker, fried oysters, and Roquefort dressing. When he ran out of things to talk about, he asked his colleagues and reporters to offer suggestions. The longest individual filibuster was made by Strom Thurmond of South Carolina, who droned on for 24 hours, 18 minutes against the Civil Rights Bill of 1957. To fill the time, he read the election laws of all 48 states, the Bill of Rights, and Washington’s farewell address.

Is there any way to stop a filibuster?There is now, but it requires a lot of senators’ support. During the 19th century, there was no mechanism for forcing a senator to sit down and shut up. The rules were amended in 1917, after isolationist senators filibustered to block President Woodrow Wilson from arming merchant ships during World War I. “A little group of willful men,” an outraged Wilson thundered, “representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” Thus chastened, the Senate passed Rule 22, which said that a two-thirds majority of those present (a “supermajority”) could end a filibuster—a procedure called “cloture.” The two-thirds rule was subsequently changed to three-fifths, or 60 votes, in 1975. Republicans were happy with that arrangement until President Bush’s first term, when outnumbered Democrats resorted to filibusters to block 10 of Bush’s nominees to federal judgeships.

Had that ever been done before?Rarely, but yes. In 1968, for example, conservative Republicans successfully filibustered Lyndon Johnson’s nomination of Supreme Court Associate Justice Abe Fortas to be chief justice. During Bill Clinton’s presidency, Republicans were able to bury about 40 of his federal judicial appointments without using the filibuster; they simply refused to schedule hearings on them. During Bush’s first term, Democrats got even by filibustering the most conservative of his judicial appointments.

How did that go over?Republicans were incensed. Though more than 200 of Bush’s judicial nominees were approved, party leaders charged that Democrats were misusing the filibuster. The GOP is warning that if Democrats try this again—especially if there’s a vacancy on the Supreme Court—Vice President Dick Cheney may simply rule in his role as presiding officer of the Senate that filibusters cannot be used to block judicial nominations. Republicans could approve this rule change with just a simple majority of 51 votes, not the supermajority of 60. Since the GOP holds 55 senate seats, their victory would be assured.

Will they do it?It seems unlikely. The Senate is extremely fond of its traditions, and the filibuster has become part of the system of checks and balances that enables the party out of power to exert a moderating influence. Republicans know that if they ram through a rule change now, they will regret it when Democrats regain the majority. “If it is being used against you,” says historian Robert Caro of the filibuster, “it is a vicious weapon of obstruction, whose use in a democracy is unconscionable. If it is you who are using that weapon, it is a great one to have in your arsenal.”

Debating without talkingFilibusters aren’t what they used to be. Today, a senator need not even make a speech to force a piece of legislation into limbo. In the 1970s, the Senate established a new, two-track system that allows more than one bill on the Senate floor at a time, to speed things up. Under the new rules, a senator can filibuster merely by invoking the right to do so. He or she need not even stand to speak. Filibustering has thus become absurdly easy. Whereas there were only 23 filibusters in the entire 19th century, senators now use the tactic about 15 times every year. Sen. Robert Byrd of West Virginia calls it the “casual, gentlemanly, good-guy filibuster. Everybody goes home and gets a good night’s sleep.” Of course, senators can still filibuster the old-fashioned way if they think it will bring media attention, and please voters back home. In 1992, Al D’Amato ranted for 15 hours, 15 minutes against a tax bill that would have cut 850 jobs at a typewriter plant in his home state of New York. To help fill the time, he launched into “The Yellow Rose of Texas,” singing it off-key and in a pronounced Long Island accent.

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