The Dutch said “vrijbuiter.” The French preferred “flibustier.” The Spanish used “filibustero.” They all meant the same thing: “Pirate, Freebooter,” gentleman of enterprise who sailed the briny deep. To Americans, “filibuster” refers to an antiquated procedure in the U.S. Senate, but both meanings share one commonality – they operate outside the law.
The Senate filibuster has no basis in law; it is purely a legislative procedure, permitted at the will of the Senate itself. The Constitution provided for only five Senate votes that require more than a simple majority: expulsion of its own members, approval of treaties, convicting impeached officials, constitutional amendments and overriding a presidential veto. But, under rules that the Senate itself has written, it requires 60 votes (three-fifths) to shut down a filibuster.
And that means that a minority can – and increasingly does – put the kibosh on the majority. While a filibuster is in progress, no other Senate business gets done. Do the math: Senators from the 21 least populated states can prevent a vote on any proposal by 88 percent of the American people.
When the U.S. government was created, Scarlett O’Hara and Abigail Adams would not have made good bridge partners. Thirteen states, each with its own needs, customs and rules, had to find some way to work together. The first effort – a sort of caucus between states – proved unsatisfactory, so a new compact was agreed in which each state yielded a carefully specified share of its own power to a central authority. The design of the U.S. Senate reflected that reservation. By giving each state, regardless of size, two senators and by allowing them to be appointed by state Legislatures (prior to the 17th Amendment), they were seen as representing individual states rather than the people. Consequently, these prodigious practitioners of parliamentary procedure enjoyed a great many privileges.
Among these privileges was the prerogative of uninterrupted speech as long as the speaker remained on the floor. This was nothing new. From the days of Rome, when Cato held up the Roman Senate for a day in an unsuccessful effort to keep Caesar from crossing the Rubicon, gas bags, exhibitionists and buffoons have attempted to emasculate lawmaking bodies by talking endlessly. Even so, for the first couple of centuries, this arcane procedure was not a problem in the U.S. Senate because individual filibusters were relatively short lived. Lone orators have to rely on self-control to remain at their desks, and senatorial bladders tend not to be the most retentive in town. The record length of uninterrupted individual bombast is held by that exemplar of good government, Strom Thurmond, who spouted nonsense for 24 hours attempting to defeat civil fights legislation. His ancestral soul mate, Huey Long, only managed 15 hours – perhaps because of his affection for the fruit of the vine and its inevitable passage.
But then, in an enhancement of chicanery, these buffoons and exhibitionists segued into “filibuster by group,” wherein speaker after speaker cooperated to maintain the floor indefinitely. Even so, the formal procedure remained infrequent at first. Between 1919 and 1960, only four filibusters were successful in preventing action. (The best example of this procedural thievery was a 57-day filibuster by a coterie of Claghorns in an effort to prevent civil rights legislation from being enacted.)
The current Senate has, in effect, refined the procedure and sharply increased its use. Nowadays, just the threat of a filibuster scares the majority into submission. If the minority leader threatens to take the floor with his well-trained 41 sheep, then the majority leader caves in. Between 2006 and 2008, when the Republicans promoted themselves into a minority, 112 filibusters (or successful threats) have frustrated the Democratic majority.
There is a special case. Called “reconciliation,” a simple majority can prevent a filibuster on bills that affect the budget – an exception, as can be imagined, which is often contentious and very rarely used. Otherwise, for a plethora of reasons, it appears impossible to muster the 51 votes to change Senate filibuster rules.
While the goal of 60 Democrats appears increasingly likely in the current Senate and filibusters will retreat into obscurity, in the meantime, another avenue appears open to the majority. Why not call the Republican bluff and force an actual filibuster every time it is threatened? Requiring a quorum in constant attendance, a filibuster would, through day after day of 24-hour bloviation, expose the performers to God and TV. It is unlikely that even Republicans could maintain such discipline very often for very long.
In truth, there is a case to be made for the filibuster. While most of its combat record has justified few medals, it has shown some value on rare occasion. It has, for example, kept people like Harriet Myers or Robert Bork off the Supreme court.
But, at the same time. like all powerful weapons, it should be used sparingly, and not as a routine barrier to majority decisions.
Rodney Quinn, who lives in Gorham, is a former Maine secretary of state. He can be reached at rquinn@maine.rr.com.
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