Filibuster

This article is about the parliamentary procedure. For other uses, see Filibuster (disambiguation).

A filibuster, or "talking out a bill", is a form of obstruction in a legislature or other decision-making body. An attempt is made to extend indefinitely a debate upon a proposal in order to delay the progress or completely prevent a vote on the proposal taking place.

The term filibuster was first used in 1851. It was derived from the Spanish filibustero meaning pirate or freebooter. This term had in turn evolved from the French word flibustier, which itself evolved from the Dutch vrijbuiter (freebooter). This term was applied at the time to American adventurers, mostly from Southern states, who sought to overthrow the governments of Central American states, and was transferred to the users of the filibuster, seen as a tactic for pirating or hijacking debate.

Ancient Rome

One of the earliest known practitioners of the filibuster was the Roman senator Cato the Younger. In debates over legislation he especially opposed, Cato would often obstruct the measure by speaking continuously until nightfall. As the Roman Senate had a rule requiring all business to conclude by dusk, Cato's purposefully long-winded speeches were an effective device to forestall a vote.

Cato attempted to use the filibuster at least twice to frustrate the political objectives of Julius Caesar. The first incident occurred during the summer of 60 B.C., when Caesar was returning home from his propraetorship in Hispania Ulterior. Caesar, by virtue of his military victories over the raiders and bandits in Hispania, had been awarded a triumph by the Senate. Having recently turned 40, Caesar had also become eligible to stand for consul. This posed a dilemma. Roman generals honored with a triumph were not allowed to enter the city prior to the ceremony, but candidates for the consulship were required, by law, to appear in person at the Forum. The date of the election, which had already been set, made it impossible for Caesar to stand unless he crossed the pomerium and gave up the right to his triumph. Caesar petitioned the Senate to stand in absentia, but Cato employed a filibuster to block the proposal. Faced with a choice between a triumph and the consulship, Caesar chose the consulship and entered the city.

Cato made use of the filibuster again in 59 BC in response to a land reform bill sponsored by Caesar, who was then consul. When it was Cato's time to speak during the debate, he began one of his characteristically prolix speeches. Caesar, who needed to pass the bill before his co-consul, Marcus Calpurnius Bibulus, took possession of the fasces at the end of the month, immediately recognized Cato's intent and ordered the lictors to jail him for the rest of the day. The move was unpopular with many senators and Caesar, realizing his mistake, soon ordered Cato's release. The day was wasted without the Senate ever getting to vote on a motion supporting the bill, but Caesar eventually circumvented Cato's opposition by taking the measure to the Tribal Assembly, where it passed.

Canada

Filibustering has a long history in Canadian politics and can be found at all levels of government.

Bill 103

Main article: Common Sense Revolution

Most attempts at stalling legislation are usually just for show and last a relatively short period of time. But in 1996, the opposition parties in Ontario tried to prevent Bill 103 from taking effect, setting in motion one of the longest filibustering sessions Canada had ever seen.

A unique form of filibuster was pioneered by the Ontario New Democratic Party in the Legislative Assembly of Ontario in April 1996. To protest Progressive Conservative government legislation that would amalgamate Metro Toronto into the city of Toronto, 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 NDP then added another series of over 700 amendments, each proposing a different date for the bill to come into force.

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, although the government subsequently nullified this with an amendment of their own.

On April 6, with the alphabetical list of streets barely into the Es, Speaker Chris Stockwell ruled that there was no need for the 220 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.

France

In France, in August 2006, the left-wing opposition submitted 137,449 amendments to the proposed law bringing the share in Gaz de France owned by the French state from 80% to 34%, to allow for the merger between Gaz de France and Suez. Normal parliamentary procedure would require 10 years to vote on all the amendments.

The French constitution gives the government two options to defeat such a filibuster. The first one was originally the use of the article 49 paragraph 3 procedure, according to which the law was adopted except if a majority is reached on a non-confidence motion (reform July 2008 resulted in this power being restricted to budgetary measures only). The second one is the article 44 paragraph 3 through which the government can force a global vote on all amendments it did not approve or submit itself.

In the end, the government did not have to use either of those procedures. As the parliamentary debate started, the left-wing opposition chose to withdraw all the amendments to allow for the vote to proceed. The "filibuster" was aborted because the opposition to the privatisation of Gaz de France appeared to lack support amongst the general population. It also appeared that this privatisation law could be used by the left-wing in the upcoming presidential election of 2007 as a political argument. Indeed, Nicolas Sarkozy, president of the Union pour un Mouvement Populaire (UMP - the right wing ruling party), Interior Minister, former Finance Minister and President, had previously promised that the share owned by the French government in Gaz de France would never go below 70%.

United Kingdom

In the Parliament of the United Kingdom, a bill defeated by a filibustering manoeuvre may be said to have been "talked out". Procedural rules in the British House of Commons do not allow Members to speak on just any subject; they must stick to the topic of the debate.

In 1874, Joseph Gillis Biggar started making long speeches in the House of Commons, lower house of the Parliament of the then United Kingdom of Great Britain and Ireland, to delay the passage of Irish coercion acts. Charles Stewart Parnell, a young Irish nationalist MP, who in 1880 became leader of the Irish Parliamentary Party, joined him in this tactic to obstruct the business of the House and force the Liberals and Conservatives to negotiate with him and his party. The tactic was enormously successful, and Parnell and his MPs succeeded in, for a time, forcing Parliament to take the Irish question of return to self-government seriously.

In 1983, Member of Parliament (MP) 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, six hours, was set by Henry Brougham in 1828, though this was not a filibuster.

The 21st-Century record was set on December 2, 2005 by Andrew Dismore, Labour MP for Hendon. Dismore spoke for three hours and 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.

On Friday, 20 April 2007, a Private Member's Bill aimed at exempting Members of Parliament from the Freedom of Information Act was 'talked out' by a collection of MPs, led by Liberal Democrats Simon Hughes and Norman Baker who debated for 5 hours, therefore running out of time for the parliamentary day and 'sending the bill to the bottom of the stack'. However, since there were no other Private Member's Bills to debate, it was resurrected the following Monday.

Filibusters in other legislatures on the Westminster 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 of 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.

Both houses of the Australian parliament have strictly enforced rules on how long members may speak, so filibusters are generally not possible there.

In 2009, several parties in New Zealand staged a filibuster of the Local Government (Auckland Reorganisation) Bill in opposition to the government setting up a new Auckland Council under urgency and without debate or review by select committee, by proposing thousands of amendments and voting in Māori as each amendment had to be voted on and votes in Māori translated in to English. Amendments included renaming the council to "Auckland Katchafire Council" or "Rodney Hide Memorial Council" and replacing the phrase powers of a regional council with power and muscle.

United States

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, unless a 3/5ths of the Senate (60 Senators elected and sworn), brings debate to a close by invoking cloture. (For changing of senate rules the pre-1975 rule of a super-majority of senators present, i.e. 67 senators at most, is still used).

Procedural filibuster

In current practice, Senate Rule 22 permits 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 where no floor speech and no quorum is required may therefore be more powerful than an actual filibuster that would require attendance by a quorum of Senators as well as the physical presence of the Senators speaking.

Previously, the filibustering senator(s) could delay voting only by making an endless speech. Currently, they need only indicate that they are filibustering, thereby preventing the Senate from moving on to other business until the motion is withdrawn or enough votes are gathered for cloture.

Preparations

Preparations for a traditional filibuster can be very elaborate. Sometimes cots are brought into the hallways or cloakrooms for senators to sleep on. While in a filibuster the senator talking must remain in the same spot and is only allowed to filibuster twice in a legislative day. A legislative day lasts until the debate is adjourned, which can take days. 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 took place in the entire nineteenth century.

History

Early use

In 1789, the first U.S. Senate adopted rules allowing the Senate "to move the previous question," ending debate and proceeding to a vote. Aaron Burr argued that the motion regarding the previous question was redundant, had only been exercised once in the preceding four years, and should be eliminated. In 1806, the Senate agreed, recodifying its rules, and thus the potential 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 this political tactic. 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 Clay was unsuccessful in eliminating the filibuster with a simple majority vote.

20th century and the emergence of cloture

In 1917, a rule allowing for the cloture of debate (ending a filibuster) was adopted by the Democratic Senate at the urging of President Woodrow Wilson. From 1917 to 1949, the requirement for cloture was two-thirds of those voting.

In 1946, Southern Senators blocked a vote on a bill proposed by Democrat 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 Democratic-controlled Senate in 1975 revised its cloture rule so that three-fifths of the Senators sworn (usually 60 senators) could limit debate. Changes to Senate rules still require two-thirds of Senators voting. Despite this rule, the filibuster or the threat of a filibuster remains an important tactic that allows a minority to affect legislation. Senator Strom Thurmond (D/R-SC) 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 which Wayne Morse (I-OR) had established in 1953 protesting the Tidelands Oil legislation.

The filibuster has tremendously increased in frequency of use since the 1960s. In the 1960s, no Senate term had more than seven filibusters. One of the most notable filibusters of the 1960s was when southern Democratic Senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by making a filibuster that lasted for 75 hours. In the first decade of the 21st century, no Senate term had fewer than 49 filibusters. The 1999-2002 Senate terms both had 58 filibusters. The 110th Congress broke the record for cloture votes reaching 112 at the end of 2008, though cloture votes are increasingly used for purposes unrelated to filibusters.

File:Cloture Voting, U.S. Senate, 1947 to 2008.jpg

Current practice

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

Budget bills are governed under special rules called "reconciliation" which do not allow filibusters. Reconciliation once only applied to bills that would reduce the budget deficit, but since 1996 it has been used for all matters 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. Indeed, James Strom Thurmond's own attempt to filibuster the Civil Rights Act was defeated when Senate Majority Leader Mike Mansfield 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.

Recent Senate history

In 2005, a group of 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 having Vice President Dick Cheney, as President of the Senate, rule from the chair that a filibuster on judicial nominees was inconsistent with the constitutional grant of power to the president to name judges with the advice and consent of the Senate (interpreting "consent of the Senate" to mean "consent of a simple majority of Senators," not "consent under the Senate rules"). Senator Trent Lott, the junior Republican senator from Mississippi, had named the plan the "nuclear option." Republican leaders preferred to use the term "constitutional option", although opponents and some supporters of the plan continued to use "nuclear option".

On May 23 2005, a group of fourteen senators was dubbed the Gang of 14, consisting of seven Democrats and seven Republicans. 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 thought a nominee was being filibustered that was not 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 was open for interpretation by each Senator, but the Republicans and Democrats would have had to agree on what it meant if any nominee were to be blocked. Senator John Kerry led a failed filibuster against Judge (now Justice) Alito in January 2006, calling Alito's nomination an "extraordinary circumstance."

On January 3 2007, at the end of the second session of the 109th United States Congress, this agreement expired.

On July 17 2007, Senate Democratic leadership allowed a filibuster, on debate about a variety of amendments to the 2008 defense authorization bill H.R. 1585, the Defense Authorization bill, specifically the Levin-Reed amendment S.AMDT.2087 to H.R.1585. The filibuster had been threatened by Republican leadership to prompt a cloture vote.

Usually proposals for constitutional amendments are not filibustered. This is because a two-thirds majority is needed to pass such a proposal, which is more than the three-fifths majority needed to invoke cloture. So usually a filibuster cannot change the outcome, because if a filibuster succeeds, the amendment proposal would not have passed anyway. However, in some cases, such as for the Federal Marriage Amendment in 2006, the Senate did vote on cloture for the proposal; when the vote on cloture failed, the proposal was dropped. Some made the accusation that the opponents of the amendment did not want to face political consequences in a midterm-election year for directly voting against the amendment, so they defeated it in a procedural vote instead.

See also

• Constitution of the Roman Republic
• Obstructionism

References

Media

• BBC, "Filibustering," at BBC News, 16 July 2005.
• BBC, "MP's marathon speech sinks bill" at BBC News, 2 Dec. 2005.
• Sarah A. Binder and Sterven S. Smith, Politics or Principle: Filibustering in the United States Senate. Washington, D.C.: Brookings Institution Press, 1996. ISBN 0-8157-0952-8
• Eleanor Clift, "Filibuster: Not Like It Used to Be," Newsweek, 24 Nov. 2003.
• Bill Dauster, "It’s Not Mr. Smith Goes to Washington: The Senate Filibuster Ain’t What it Used To Be," The Washington Monthly, Nov. 1996, at 34-36.
• Alan S. Frumin, "Cloture Procedure," in Riddick's Senate Procedure, 282–334. Washington, D.C.: Government Printing Office, 1992.
• Daniel Lazare, The Frozen Republic: How the Constitution Is Paralyzing Democracy. Harcourt, 1996. ISBN 0-15-100085-9
• Jessica Reaves, "The Filibuster Formula," Time, 25 Feb. 2003.
• U.S. Senate, "Filibuster and Cloture."
• U.S. Senate, "Filibuster Derails Supreme Court Appointment."

External links

• 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.