Technicalities

For most people outside the US, the word filibuster (flibustier on the French coasts) might only raise some vague memories about scary-looking bad guys roaming the seas in order to loot, rape and sink whatever they get their hook on (no, not talking about Dick Cheney and Haliburton here). In US political legalese, however, it carries a very different meaning.
You better get acquainted with it, as you are likely to hear more of it, provided the Democrat senators get some of their spine back by then.
It is also the only legal barrier that stands between the 48% somewhat sane Americans and their newly elected Emperor’s theocratic vision for America.

To do very, very short:

A filibuster is a way for the minority party to oppose a law that’s being debated in the Senate and that would otherwise easily receive the necessary majority vote, by methodically obstructing the debate and hogging speaking privileges.

Senate rules state that every senator is entitled to two speeches of unlimited duration regarding the matter at hand. Further more, only a tiny fractions of such speeches (3 hours per session, to be precise) is required to be germane (somewhat relevant to the matter at hand), the rest can be about anything, and I do mean, anything (see below).

Yea, it means that any senator can stand up, take the mic and start reading the phone directory for as long as his legs carry him. And not only are his political opponents powerless to stop him, but they also must sit through all of it: for if, at any moment during the debate an absolute majority of the Senate is not present to answer a quorum call (just a fancy expression for the President calling all the names and writing down those who played hooky), the whole text gets dropped, pure and simple.

Back in the days of circus politics, when Frank Capra could make entertaining yet heartwarming movies about political institutions, this kind of thing happened more than once (Jimmy Stewart in his movie, for one).

Notorious loud-mouthed populist Huey Long, for example, was quite an adept at lone style filibustering (without much party support):

[He] would dictate for the benefit of the Congressional Record recipes for cooking upon which his authoritative advice had been regularly in demand in Washington social circles ….
He then proceeded to tell the Senate at great length and in meticulous detail how to fry oysters. Nor did he omit a rambling discourse on the subject of ‘potlikker.’
Franklin Burdette, Filibustering in the Senate (1940, Princeton University Press edition)

More sinister, Strom Thurmond set the record in 1957, trying to delay the vote on the Civil Rights Act. He stood up and spoke continuously (at one point reading the phone book aloud) for more than 24 hours.

At the end of which, the Senate applauded. Then passed the bill.


Of course, Senate rules include ways to circumvent such a deadlock. Basically two options:

The Senate can vote a Motion to Table to stop short the debate and scrap the text without further discussion. They only need a simple majority to do so. We could say it’s a way to give up and grant victory to the vocal minority.

If they want to go through and pass the text, the majority group can vote a Motion to Cloture which does roughly the same except it imposes to skip to the vote (likely successful since the text is backed by a majority to begin with) within 30 hours.

However, to invoke Cloture on a debate, senators must gather an absolute 3/5 of the Senate. That’s 60 senators, regardless of how many total are present.

The current GOP Senate majority falls 5 seats short of the 3/5, with 55… though getting dangerously closer (compared to their lame-duck majority of 51 the last time around). Counting the one independent senator, they would need to enlist, one way or another, 4 Democrats to stop short a filibuster: perfectly possible (especially if they can get popular support for their measure in some Democrat states), but difficult.

In an interesting example of recursion in constitutional law (it’s full of them), there is an exception to the 3/5th rule: when the matter debated involves changes to the Cloture rule itself, the threshold is raised to an absolute 2/3 of the Senate (66) instead of 3/5, making it even more difficult to pass.


I used to think rather negatively of the whole concept. At best a quaint relic from an antiquated system that had no room in 21st century politics, but also a somewhat disturbing element of anti-democratic behaviour condoned by the institutions… With a bit more research, both for academic and personal purpose, I have since changed my views and come to understand and appreciate its importance within the legal process.

First of all: it is commonly agreed that one of the essential feature of any set of constitutional laws must be its propensity to resist change. That is: it must favor conservatism (in the non-partisan acception of the term). Its ultimate goal is to allow slow and careful change while blocking any reactionary movement that attempts to bring sudden and major alterations. Which is a good thing.

Of course, you do not have to agree with the original set of laws and might be eager to see it changed faster than the process will let you: that’s when you gather your friends, round up a few muskets and start a revolution. Apart from that, constitutional texts should protect the people from its own whims and sudden enthusiasms by temporising and limiting its ability to reform.

Filibuster and motion to cloture work together to insure that a weak majority cannot easily overturn all previous decisions and go on with its own program, without at least some level of agreement from the minority. Failing that, their power to vote a law is not completely stopped, only massively slowed down, in a way that purport to be spectacular enough that it should draw the public’s attention (a real filibuster in the US Senate nowadays could freeze the country’s democratic process for days) and pressure both parties to find a compromise. Because they have to consider the negative repercussions on their public image and on the good functioning of the institutions, senators will try their best to avoid a filibuster, by moderating their texts and making concessions to a minority that they could otherwise blindly ignore.

And I think we can all agree this is a good thing. Especially when the majority is inclined to try and push an ultra-reactionary agenda that would make Medieval Europe seem enlightened in comparison.

Leave a Reply