Filibuster

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 infinitely extend 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. [ [http://www.etymonline.com/index.php?term=filibuster Online Etymology Dictionary] - "filibuster", retrieved February 14, 2007]

Canada

Filibustering has a long history in Canadian politics and can be found at all levels of government. Most attempts at stalling legislation are usually just for show and last a relatively short period of time. But in 1997 the opposition party in Ontario tried to prevent Bill 103 from taking effect, setting in motion one of the longest filibustering sessions Canada had seen.

Bill 103

A unique form of filibuster was pioneered by the Ontario New Democratic Party in the Legislative Assembly of Ontario in April 1997. To protest Progressive Conservative government legislation that would amalgamate the city of Toronto, Ontario, 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 (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 230 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 is through the use of the article 49 paragraph 3 procedure, according to which the law is adopted except if a majority is reached on a non-confidence motion. 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 20th-Century record for the longest non-stop Commons speech is held by Conservative barrister Sir Ivan Lawrence. The then MP for Burton spoke for four hours and 23 minutes during the Fluoridation Bill's committee stage on March 6, 1985.

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". [ [http://news.bbc.co.uk/1/hi/uk_politics/4492688.stm BBC News] - "MP's marathon speech sinks bill", retrieved February 14, 2007] 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. [ [http://news.bbc.co.uk/1/hi/uk_politics/6586131.stm BBC News] ]

Filibusters in other legislatures on the British 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 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. [ [http://www.aph.gov.au/senate/pubs/standing_orders/a01.htm Parliament of Australia] - Standing Orders and other orders of the Senate, retrieved June 23, 2008] [ [http://www.aph.gov.au/House/pubs/standos/chapter1.htm Parliament of Australia] - House of Representatives Standing and Sessional Orders, retrieved June 23, 2008]

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 supermajority of three-fifths of the Senate (60 Senators, if all 100 seats are filled) brings debate to a close by invoking cloture. [ Karl Nahrgang is the Human Filibuster [http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm United States Senate] - "Filibusters and Cloture", retrieved October 11, 2007]

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 can therefore be as powerful as an actual filibuster. 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 filibuster can be very elaborate. Sometimes cots are brought into the hallways or cloakrooms for senators to sleep on. 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." [ [http://msnbc.msn.com/id/3474915/ Newsweek] - "Filibuster: Not Like It Used to Be", retrieved February 14, 2006]

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. [Lazare, D. "Frozen Republic", p.198]

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. In 1806, Aaron Burr argued that the motion regarding the previous question was redundant, had only been exercised once in the preceding four years, [see M. Gold & D. Gupta, [http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf 28 Harvard Journal of Law & Public Policy 205] at 215] and should be eliminated. The Senate agreed, and thus the "potentiality" 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 he 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 [http://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm United States Senate] - "Party Division in the Senate, 1789-Present", retrieved February 14, 2007] at the urging of President Woodrow Wilson. [ [http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm United States Senate] - "Filibuster and Cloture", retrieved February 14, 2007] 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.
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 set by Wayne Morse (I-OR) 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 filibusters of the 1960s, was when southern Democratic Senators attempted 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. [ [http://www.mcclatchydc.com/226/story/18218.html McClatchy Washington Bureau | 07/22/2007 | Senate tied in knots by filibusters ] ] In the fall of 2007, the 110th Congress' 1st session broke the record, for filibuster cloture votes, topping 70 as of Nov 15, 2007. It is on track to triple the number of such votes in 2008's 2nd session. [ [http://www.senate.gov/pagelayout/reference/cloture_motions/110.htm U.S. Senate: Reference Home > Virtual Reference Desk > Cloture > 110th ] ]

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. Strom Thurmond's 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 making a rules change to eliminate filibusters on judicial nominees with the justification that the current Senate rules allowing such filibusters are unconstitutional. Senator Trent Lott, the junior Republican senator from Mississippi, named the plan the "nuclear option." Republican leaders later referred to the plan as the "constitutional option," though opponents and some supporters of the plan continue to use "nuclear option."

On May 23, a group of 14 senators dubbed the Gang of 14 — seven Democrats and seven Republicans — brokered a deal to allow three of Bush's nominees a vote on the Senate floor while leaving two others subject to a filibuster. 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 wasn't 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."

This agreement expired at the end of the second session of the 109th United States Congress (ended January 3, 2007).

Senate Democratic leadership allowed a filibuster on July 17, 2007, on debate about a variety of amendments to the 2008 defense authorization bill [http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.01585: H.R. 1585, the Defense Authorization bill] , specifically the Levin-Reed amendment [http://thomas.loc.gov/cgi-bin/bdquery/D?d110:106:./temp/~bdAt3b:: 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; and when the vote on cloture failed, the proposal was dropped. Some cite the rationale being 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.

ee also

* Constitution of the Roman Republic
* Obstructionism
* Nuclear option

References

Notes

Media

*BBC, " [http://news.bbc.co.uk/1/hi/uk_politics/82143.stm Filibustering] ," at BBC News, 16 July 2005.
*BBC, " [http://news.bbc.co.uk/1/hi/uk_politics/4492688.stm 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, " [http://msnbc.msn.com/id/3474915/ Filibuster: Not Like It Used to Be] ," "Newsweek", 24 Nov. 2003.
*Bill Dauster, " [http://www.findarticles.com/p/articles/mi_m1316/is_n11_v28/ai_18855822 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 " [http://www.gpoaccess.gov/riddick/282-334.pdf Riddick's Senate Procedure,] " 282–334. Washington, D.C.: Government Printing Office, 1992.
*Garry Gamber, " [http://www.article-emporium.com/world-affairs-8455.htm Famous Filibusters in Our Political History] "
*Daniel Lazare, "The Frozen Republic: How the Constitution Is Paralyzing Democracy". Harcourt, 1996. ISBN 0-15-100085-9
*Jessica Reaves, " [http://www.time.com/time/nation/article/0,8599,423312,00.html The Filibuster Formula] ," "Time", 25 Feb. 2003.
*U.S. Senate, " [http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm Filibuster and Cloture] ."
*U.S. Senate, " [http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm Filibuster Derails Supreme Court Appointment] ."

External links

* [http://www.ontla.on.ca/web/house-proceedings/house_detail.do?locale=en&Date=1997-04-02&Parl=36&Sess=1&detailPage=/house-proceedings/transcripts/files_html/1997-04-02_L176b.htm 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.