Theodicius

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Filibuster

Posted on by arlen

Anyone else out there getting tired of the irrational spin (from both sides of the aisle) over the art of the filibuster? Let’s let some air in.

Filibusters have long been a part of Senate history. The House did away with them completely as it grew, but the Senate chose to retain the possibility of them, in no small part because the Senate itself is the house of Congress dedicated to protecting the rights of the minority (in the Senate, Rhode Island and Wyoming have as many votes as California and New York).

For over a century, there was no way to end debate on a topic. A single senator, if the topic was important enough to him, could stall legislation. A minority of one could prevent the Senate from acting.

In 1917, some Republicans wanted to prevent the US from gearing up for entry into World War I, and so filibustered all of Woodrow Wilson’s attempts. Wilson was, of course, peeved by this, and a debate over the rules ensued. “Cloture,” a way of deciding to end the debate, was created. When it was created, it required 2/3 of the senate to halt the debate. The minority was still protected, but now the minority had to comprise at least 1/3 of the Senators; the lone haranguer could no longer stop the Senate. The Republican filibuster was broken, and the country could go to war. (Yes, children, hard as you may find it to believe, in the past there were many Republicans who were 100% against fighting wars on foreign soil.)

As often happens in the field of human endeavor, once you make rules about something, it becomes more common in practice. And filibusters were no different. The requirement for a 2/3 majority made cloture votes almost impossible to pass, so the filibusters prevailed. The longest single speech in a filibuster on record was Strom Thurmond, slightly over 24 hours, against civil rights.

In 1959 the Senate voted again to change the filibuster rules. The original 1917 rules required a vote of 2/3 the entire Senate; in 1959 it was changed to be 2/3 of the Senators present. This required the side doing the filibustering to keep more people on the Seante floor than in the past, giving them fewer chances to take breaks. This was done largely to help pass the civil rights legislation, which was a routine target for filibustering.

The fact that most cloture votes still failed irked the majority. So in 1975 the current requirement for 3/5 (rather than 2/3) was instituted. Filibusters were still an effective tool for protecting the minority in practice, though in theory they were weakend. Then came Senator Byrd…

The bit of parliamentary gamesmanship that Frist will probably use, and which is variously mis-named as the Nuclear Option or the Constitutional Option (mis-named, because it is neither) was pioneered by Robert Byrd back when he was Senate Majority Leader. It is to simply raise a point of order about the nature of the debate, and state that it should end. The presiding officer of the Senate can either rule on it or pass it to the Senate, if he chooses to rule on it himself, there is no debate about it allowed, he simply rules. The parties ruled against may, of course, appeal his ruling to the full Senate, where the appeal can be debated, but only if a motion to table is not entered. A “motion to table” is a parliamentary death sentence; there is no debate allowed on such a motion, only an up/down, yes/no vote.

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