The Fundamentals of Filibustering

by Gregory Koger on August 19, 2009 · 3 comments

in Health Care,Institutions,Legislative Politics,Senate procedure

1) Definition
If we want to understand filibusters, it helps to start with a clear definition. Filibustering is delay, or the threat of delay, in a legislative chamber to prevent a final outcome for strategic gain. The key features are the purpose (delay) and the motive (gain) and NOT specifying the legislature or the method.

2) Obstruction occurs in many legislative settings.
Although the current focus is on the U.S. Senate, filibustering is a general phenomenon. While collecting data on filibusters in the modern Senate, I found references to filibustering in 20 state legislatures, 19 foreign countries, and the United Nations. In 2003, for example, Democrats in the Texas legislatures fled the state to block a redistricting plan. These other legislatures provide case studies that can help us understand the Senate.

3) Methods
There are lots of ways to kill time. We might associate filibustering with long speeches, but this is because Southerners opposed to civil rights favored germane speeches as the most legitimate form of obstruction (and hence more difficult to shut down). However, legislators can also delay by calling for unnecessary roll call votes, e.g. on motions to adjourn. Another classic technique is and by refusing to vote in the hopes of “breaking” a quorum, aka a “disappearing quorum.” The U.S. Constitution requires a simple majority to be in the chamber (or, the classic interpretation, joining in a vote) in order for a vote to be valid. So, if attendance is low, a minority of those present can block a decision by NOT voting. This was the Republican strategy in 1988, when then Majority Leader Robert Byrd had the Senate sergeant-at-arms drag Bob Packwood (R-OR) to the Senate floor.

Filibusters 1789-1901.jpg

For details & more charts, see the book! But the recurring finding is that there was more measured filibustering in the U.S. House than the Senate. And when columnists and academics were arguing over the merits and demerits of filibustering 120 years ago, they were talking about the U.S. House.

Filibustering in the House was reduced after stringent reforms were imposed after a long parliamentary campaign that lasted from 1890 to 1894. But it is noteworthy that some obstruction continued afterwards, and is still possible in the current day, e.g. Republicans blocking a revision of the “motion to recommit” rule on May 16, 2007.

4) Motives
We know that legislators can kill a bill with a filibuster, or extort concessions like the $100+ billion cut from the stimulus bill to attract three Republican votes. And sometimes, since they are politicians, what they really want is attention.

Legislators often filibuster to preserve their ability to make speeches and offer amendments. As Norman Ornstein and Thomas Mann have noted, the House increasingly stages straightjacket debates in which the majority chooses how long a bill will be debated (not long, so they can go back to raising money and visiting their districts) and which amendments will come up for a vote (not many, and nothing that gives heartburn to majority party members). In the Senate, the minority party has some leverage to ensure that major legislation faces a real debate, and that critical issues (e.g. should we drill in ANWR?) come up for a vote.

Finally, legislators filibuster to draw attention to a new issue on the legislative agenda. During the 1990s, Democrats (and John McCain) held major bills (appropriations, highway funding) hostage until Trent Lott promised them votes on campaign finance reform. In some cases, this power can broaden the public debate and keep the majority party from bottling up important and popular proposals.

5) Responses
There are several ways to deal with a Senate filibuster: negotiating, voting on cloture (which currently requires 60 votes), institutional change, and attrition. For anyone who wants to understand the history of filibustering in Congress, the last option is the most important. “Attrition” means that the majority simply waits until the obstructionist(s) is exhausted, e.g. Strom Thurmond’s futile 24-hour filibuster in 1957. In Mr. Smith Goes to Washington, filmed in the 1930s, the senators choose to wait out Jefferson Smith’s speaking rather than file a cloture petition, because attrition offered a quicker and easier resolution to the contest. This was a realistic touch, and the 1930s Senate successfully waited out several filibusters. Even before the Senate had a cloture rule (and before the House adopted its 1890s reforms), attrition was a realistic solution to a filibuster.

6) Reform
Bottom line: a simple majority has—and has always had—the power to restrict filibustering if senators are willing to take extreme measures to achieve their goals. Although parliamentary rules are discussed as if they are LAWS (with “rules” and “precedents” and “rulings from the chair”) in the final analysis the rules can be interpreted however a majority of the legislature prefer.
Some blogs explain the persistence of filibustering to an 1806 decision to eliminate the “previous question” motion from the Senate rulebook—the same motion which the House uses to cut off discussion. However, this is a confused and confusing argument: the previous question motion did not actually end filibustering in the House (see above), nor does the absence of this motion leave the majority of the Senate powerless to limit filibusters. As I discuss in a recent paper, there are several tactics senators have used, have proposed, or could use to restrict filibustering. This post by Ezra Klein is a good application of this idea to the budget reconciliation process: in the end, the rules are malleable if a majority is determined to win.

7) Puzzles

If 1-6 are correct, there are two big questions about filibustering in the Senate. First, if filibustering has always been possible, why and when did it stop being a rare struggle and become an everyday test of whether the supporters of a bill could muster enough votes to invoke cloture? Second, if a simple majority senators can restrict filibustering whenever they want, why haven’t they done so?

Next Post: is filibustering “constitutional”?

{ 2 comments }

Joel August 19, 2009 at 4:55 pm

Professor Koger,

Do you have an answer (in the book, or another source, or possibly a short version here) to why the actual practice of filibustering seems no longer to be required? It seems that all is needed now is the threat of it – what changed to make the majority party unwilling to force the minority to actually go through with it? Why does the majority cave, without making the minority go through the motions?

I had an undergrad ask me this some time back, and I have found very little literature discussing this shift.

Greg Koger August 19, 2009 at 5:02 pm

Joel,
that’s the central question of my book. One of my posts will be a really brief synopsis.

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