The Future of the Labor Movement
Darryl Cherness asked:
As election day draws near, it appears extremely likely that Barack Obama will be elected the next President of the United States. In addition, there is a general consensus, even among Republicans, that the Democrats will pickup seats in congress and may even obtain a “filibuster proof” majority in the Senate.
Currently, the Democrats have 49 seats in the Senate. In addition to those 49 seats, there are 2 independents, Joe Lieberman and Bernard Sanders, who caucus with the Democrats, effectively giving them a 51 seat majority. However, in order to get anything done in the Senate, 60 votes are needed to break Republican sponsored filibusters, the process of talking a bill to death and preventing action on urgently needed legislation.
There is general agreement, given the state of the economy, that 2008 will be a Democratic year. If Democrats pick up 5 seats in the Senate, the minimum they are projected to win, they will have 56 votes and will only need 4 Republican votes to break a filibuster. However, if the Democrats pick up 9 votes, difficult but not impossible, they will be able to shut off debate without crossover Republican votes.
What will it mean for the labor movement to have a filibuster proof, Democratic majority in the Senate?
First and foremost, it means that the Employee Free Choice Act will be enacted into law. The Democratic congress will vote for the Employee Free Choice Act and send that legislation to President Barack Obama who will sign it into law. Once the Employee Free Choice Act becomes law and management can no longer manipulate company based representation elections, it is a safe bet that there should be a significant increase in the number of union represented employees in the United States.
In addition to the passage of the Employee Free Choice Act, a strong Democratic majority in congress can be counted on to periodically raise the federal minimum wage for the working poor. Hopefully, the days of having to wait nine years for small increases in the minimum wage should become a relic of the past.
Other areas where significant changes can be anticipated include revisions in NAFTA to make it more labor friendly, the elimination of tax incentives to encourage American businesses to relocate overseas, greater regulation of the home loan industry to prevent a reoccurrence of the “subprime” housing debacle, and tax breaks for middle income wage earners.
Another significant change will come in the area of job creation. Unlike George Bush, Senator Obama has made it clear that he intends to spend significant sums of money on promoting renewable energy such as wind, solar, and geothermal energy. The expenditure of these funds should create thousands of new jobs for working men and women.
Finally, it is my belief that it is absolutely inevitable that the Democratic congress and the new Democratic president will allocate significant resources for “public works” projects; i.e. repair of infrastructure such as roads, bridges, sewers, water treatment plants, etc. Rather than rely on the marketplace to generate wealth that will “trickle down” to the masses, Obama and the Democratic congress will take direct action to stimulate our economy and return our nation to prosperity by means of these job creating projects.
I believe that the next four years may very well be recorded by historians as labor’s new “golden age.”
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As election day draws near, it appears extremely likely that Barack Obama will be elected the next President of the United States. In addition, there is a general consensus, even among Republicans, that the Democrats will pickup seats in congress and may even obtain a “filibuster proof” majority in the Senate.
Currently, the Democrats have 49 seats in the Senate. In addition to those 49 seats, there are 2 independents, Joe Lieberman and Bernard Sanders, who caucus with the Democrats, effectively giving them a 51 seat majority. However, in order to get anything done in the Senate, 60 votes are needed to break Republican sponsored filibusters, the process of talking a bill to death and preventing action on urgently needed legislation.
There is general agreement, given the state of the economy, that 2008 will be a Democratic year. If Democrats pick up 5 seats in the Senate, the minimum they are projected to win, they will have 56 votes and will only need 4 Republican votes to break a filibuster. However, if the Democrats pick up 9 votes, difficult but not impossible, they will be able to shut off debate without crossover Republican votes.
What will it mean for the labor movement to have a filibuster proof, Democratic majority in the Senate?
First and foremost, it means that the Employee Free Choice Act will be enacted into law. The Democratic congress will vote for the Employee Free Choice Act and send that legislation to President Barack Obama who will sign it into law. Once the Employee Free Choice Act becomes law and management can no longer manipulate company based representation elections, it is a safe bet that there should be a significant increase in the number of union represented employees in the United States.
In addition to the passage of the Employee Free Choice Act, a strong Democratic majority in congress can be counted on to periodically raise the federal minimum wage for the working poor. Hopefully, the days of having to wait nine years for small increases in the minimum wage should become a relic of the past.
Other areas where significant changes can be anticipated include revisions in NAFTA to make it more labor friendly, the elimination of tax incentives to encourage American businesses to relocate overseas, greater regulation of the home loan industry to prevent a reoccurrence of the “subprime” housing debacle, and tax breaks for middle income wage earners.
Another significant change will come in the area of job creation. Unlike George Bush, Senator Obama has made it clear that he intends to spend significant sums of money on promoting renewable energy such as wind, solar, and geothermal energy. The expenditure of these funds should create thousands of new jobs for working men and women.
Finally, it is my belief that it is absolutely inevitable that the Democratic congress and the new Democratic president will allocate significant resources for “public works” projects; i.e. repair of infrastructure such as roads, bridges, sewers, water treatment plants, etc. Rather than rely on the marketplace to generate wealth that will “trickle down” to the masses, Obama and the Democratic congress will take direct action to stimulate our economy and return our nation to prosperity by means of these job creating projects.
I believe that the next four years may very well be recorded by historians as labor’s new “golden age.”
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Logged in as Darryl Cherness. Logout »
A History and Explanation of the Filibuster
Garry Gamber asked:
The filibuster has been a tool available to U.S. Senators during Senate floor discussions on legislation and appointments since the U.S. Constitution was ratified. Both the Democratic and Republican parties have valued the filibuster as a means to bring compromise and bipartisanship to bitter and divisive debates.
The word, filibuster, as it applies to the American political process refers to a political delaying tactic such as a long speech used by politicians to delay or prevent the passage of legislation. The older meaning of filibuster refers to the illegal act of plundering or piracy; of capturing a ship and its cargo and holding it for ransom.
The etymology of the word, filibuster, seems to date back to about 1560-1570 when the English anglicized the Dutch word, vrijbutier, into freebooter. A freebooter is understood to be a person who goes in search of plunder; a pirate, a buccaneer. Shortly thereafter, the French adopted filibustier and the Spanish adopted filibustero to mean the same thing. In the 17th century the English transformed the Spanish word into filibuster to describe the actions of the pirates who attacked the Spanish explorers of the New World. In the 1800’s the Americans popularized the word filibuster, referring to the activities of famous pirates operating in Latin America and the Caribbean.
Filibuster as Piracy
From 1830 to 1860 the countries of Cuba, Mexico, Honduras, Costa Rica, and Nicaragua were all victims of various filibuster campaigns. The filibusters were led by groups of adventurers who, without the consent of the American Government, but with the aid of private American finance, tried to seize political power in these Latin American and Caribbean countries. Part of the aim of the filibuster campaigns was to empower the population of these countries and bring forth a revolution that would be beneficial to American interests, mainly the slave trade.
Financial support for the filibusters came largely from the southern states where parades of celebration were held in their honor and songs were written about their adventures. Officially, the U.S. did not support the filibuster campaigns because the military was spread too thin to be able to provide adequate enforcement of the laws against the involvement. Many citizens saw the campaigns as an aspect of “manifest destiny,” the idea that America had a right to unlimited expansion.
A couple of famous filibusterers include Narciso Lopez and William Walker. Lopez liberated Venezuela from Spanish rule and attempted three times to liberate Cuba. Walker, from Tennessee, annexed parts of Mexico, including Lower California, and declared himself to be president. The U.S. government did not support Walker and eventually brought him to trial.
The era of the Filibuster Movement ended when the U.S. Civil War started. Attention and resources were given to the defense of the North and the South, ending the efforts of the filibuster campaigns.
Filibuster as a Political Tool
During the period from 1840 to 1860, numerous Southern politicians made long speeches during Senate floor debates on legislation bills for the purpose of delaying the bill or preventing a vote on the bill. The word filibuster was borrowed to describe these speeches, which were thought of as piracy of time and opportunity. Henry Clay, in 1841, gave what is considered to be the first filibuster speech.
As the debate over the slavery issue became more important in Congress, southern politicians used the tactic of long dilatory speeches to block all civil rights legislation. The word filibuster became popularized during this pre-Civil War period.
Legislative Rules
The U.S. Constitution did not give direction to the House of Representatives or to the Senate regarding how to conduct everyday business and how to conduct debates on the floor. Each body was expected to create and adopt their own rules.
On day 2 of the first Senate meeting a special committee was created to “prepare a system of rules for conducting business.” A few days later, on April 7, 1789, the special committee filed their first rules report and on April 16, 1789, the Senate adopted their first set of rules. The first set contained 19 rules and on April 18 number 20 was adopted. At this point the special committee was disbanded.
The rules committee was recreated on several occasions during succeeding years for the purpose of creating new rules or revising existing rules. Since 1789 there have been 7 adoptions of new or revised rules; in 1806, 1820, 1828, 1877, 1884, and 1979. Some rules have been amended and passed by the Senate without going to a committee. The change to Rule XXII in 1917 to provide for a cloture procedure is a good example. There currently are a total of 43 Standing Rules of the Senate.
The House Rules and Manual of the U.S. House of Representatives does not allow for filibuster speeches. Each Representative is allowed to hold the floor to debate a question for one hour and may only speak once on each question. The House is a large body and the members thought it wise to limit the amount of time that a Representative may speak.
The Senate is an entirely different situation, however.
Senate Rule XIX
Rule XIX is the key rule that provides a structure for debate on the Senate floor. A key provision of the rule states that when a Senator rises to seek recognition during floor debate, he or she is guaranteed a chance to speak on the question for as long as he or she wishes. The presiding officer is not given discretion in this matter and must recognize each Senator in order. During the period of time that a recognized Senator is speaking the question before the Senate cannot come to a vote. The Senator cannot be interrupted or be forced to stop their speech without their consent.
Debate Rule XIX does not limit the number of Senators who may speak on an issue. The rule does, however, limit each Senator to two speeches per legislative day on each issue. During a filibuster period the presiding officer will typically call a recess rather than an adjournment at the end of the calendar day, keeping the legislative day alive when the Senate reconvenes. This tactic effectively limits each Senator to a maximum of two speeches on each issue. It is possible, however, for a Senator to offer an amendment in order to create a new debatable question, on which the Senators may make two more speeches.
A relatively recent provision in Rule XIX, called the “Pastore Rule” in honor of Senator John Pastore of Rhode Island, requires that debate on a question must be germane to the question. During filibuster periods this rule is enforced to prevent Senators from making meaningless, off-topic speeches. During the 1930’s through the 1950’s several Senators, such as Huey Long and Strom Thurmond made long filibusters which included readings of recipes, the Congressional Record, the Declaration of Independence, and other non-germane topics.
While a Senator is speaking on an issue he or she must remain standing and must speak more or less continuously. During a filibuster-length speech this requirement creates fatigue in the speaker. However, the speaker may yield to a question from another Senator without losing the floor. The other Senator can provide relief by asking a very long question followed by a short answer, followed by more long questions. In this manner a group of Senators can work together to extend the length of a Senator’s speaking period.
Senate Rule XXII
The procedures for invoking cloture for purposes of wrapping up the floor debate and bringing the question to a vote are contained in Rule XXII. The process requires a motion that is signed by at least 16 Senators and presented to the presiding officer while the question is being debated. The rule requires that the cloture motion must be seasoned, meaning that it cannot be acted upon until the second day after it is presented.
One hour after the cloture motion has matured on the third day the presiding officer interrupts the Senate proceedings and presents the cloture motion to the Senate for a vote. At this point an automatic roll call vote is required.
In 1975 the Senate voted to change the number of votes needed to invoke cloture to 60% from the previous 67%. A compromise was struck, however, because some Senators feared that if changing the Rule was too easy that the majority needed to invoke cloture might be reduced further in the future. Therefore, the Senate agreed that to make future rule changes, including changing the cloture rule itself, would require the traditional 67% majority vote.
If the motion to invoke cloture is defeated the Senators can reconsider the vote or file a new motion to invoke cloture. For example, in 1988 there were eight cloture motions on a campaign finance reform bill and all eight motions were defeated.
If a motion to invoke cloture is successful, then the effect of invoking cloture only guarantees that a vote on the question will take place eventually, but not immediately. After the successful cloture motion has passed the Senate is said to be working under cloture. Rule XXII imposes a maximum cap of 30 additional hours for debate, quorum calls, parliamentary inquiries, and other proceedings prior to an actual vote on the question. During this cloture period each Senator is entitled to speak for a total of not more than one hour.
Once cloture has been invoked under Rule XXII, the point of a filibuster is largely lost. Without exception, proceedings are wrapped up in less than 30 hours and the question is brought to a vote.
Conclusion
The filibuster speech in the Senate has enjoyed a long tradition and has been used for several purposes. On one hand the filibuster has been used to persuade others of the validity of the minority position on a question. Open and unlimited debate can change minds and sway opinion. The filibuster speech process may help to defeat an issue once a vote is taken.
On the other hand, the filibuster has been used to stall or prevent a vote on an issue. The filibuster speech or the threat of a filibuster may cause the issue to be tabled or withdrawn and not brought to a vote on the floor.
The minority party in the Senate counts on the use of the filibuster as a means to prevent the majority party from wielding too much influence. Such a tool encourages the two major parties in the Senate to work in nonpartisan ways to resolve differences. The filibuster creates a need for compromise. It has been suggested that without the filibuster tool the Senate would be much less productive in producing legislation.
The filibuster has been a tool available to U.S. Senators during Senate floor discussions on legislation and appointments since the U.S. Constitution was ratified. Both the Democratic and Republican parties have valued the filibuster as a means to bring compromise and bipartisanship to bitter and divisive debates.
The word, filibuster, as it applies to the American political process refers to a political delaying tactic such as a long speech used by politicians to delay or prevent the passage of legislation. The older meaning of filibuster refers to the illegal act of plundering or piracy; of capturing a ship and its cargo and holding it for ransom.
The etymology of the word, filibuster, seems to date back to about 1560-1570 when the English anglicized the Dutch word, vrijbutier, into freebooter. A freebooter is understood to be a person who goes in search of plunder; a pirate, a buccaneer. Shortly thereafter, the French adopted filibustier and the Spanish adopted filibustero to mean the same thing. In the 17th century the English transformed the Spanish word into filibuster to describe the actions of the pirates who attacked the Spanish explorers of the New World. In the 1800’s the Americans popularized the word filibuster, referring to the activities of famous pirates operating in Latin America and the Caribbean.
Filibuster as Piracy
From 1830 to 1860 the countries of Cuba, Mexico, Honduras, Costa Rica, and Nicaragua were all victims of various filibuster campaigns. The filibusters were led by groups of adventurers who, without the consent of the American Government, but with the aid of private American finance, tried to seize political power in these Latin American and Caribbean countries. Part of the aim of the filibuster campaigns was to empower the population of these countries and bring forth a revolution that would be beneficial to American interests, mainly the slave trade.
Financial support for the filibusters came largely from the southern states where parades of celebration were held in their honor and songs were written about their adventures. Officially, the U.S. did not support the filibuster campaigns because the military was spread too thin to be able to provide adequate enforcement of the laws against the involvement. Many citizens saw the campaigns as an aspect of “manifest destiny,” the idea that America had a right to unlimited expansion.
A couple of famous filibusterers include Narciso Lopez and William Walker. Lopez liberated Venezuela from Spanish rule and attempted three times to liberate Cuba. Walker, from Tennessee, annexed parts of Mexico, including Lower California, and declared himself to be president. The U.S. government did not support Walker and eventually brought him to trial.
The era of the Filibuster Movement ended when the U.S. Civil War started. Attention and resources were given to the defense of the North and the South, ending the efforts of the filibuster campaigns.
Filibuster as a Political Tool
During the period from 1840 to 1860, numerous Southern politicians made long speeches during Senate floor debates on legislation bills for the purpose of delaying the bill or preventing a vote on the bill. The word filibuster was borrowed to describe these speeches, which were thought of as piracy of time and opportunity. Henry Clay, in 1841, gave what is considered to be the first filibuster speech.
As the debate over the slavery issue became more important in Congress, southern politicians used the tactic of long dilatory speeches to block all civil rights legislation. The word filibuster became popularized during this pre-Civil War period.
Legislative Rules
The U.S. Constitution did not give direction to the House of Representatives or to the Senate regarding how to conduct everyday business and how to conduct debates on the floor. Each body was expected to create and adopt their own rules.
On day 2 of the first Senate meeting a special committee was created to “prepare a system of rules for conducting business.” A few days later, on April 7, 1789, the special committee filed their first rules report and on April 16, 1789, the Senate adopted their first set of rules. The first set contained 19 rules and on April 18 number 20 was adopted. At this point the special committee was disbanded.
The rules committee was recreated on several occasions during succeeding years for the purpose of creating new rules or revising existing rules. Since 1789 there have been 7 adoptions of new or revised rules; in 1806, 1820, 1828, 1877, 1884, and 1979. Some rules have been amended and passed by the Senate without going to a committee. The change to Rule XXII in 1917 to provide for a cloture procedure is a good example. There currently are a total of 43 Standing Rules of the Senate.
The House Rules and Manual of the U.S. House of Representatives does not allow for filibuster speeches. Each Representative is allowed to hold the floor to debate a question for one hour and may only speak once on each question. The House is a large body and the members thought it wise to limit the amount of time that a Representative may speak.
The Senate is an entirely different situation, however.
Senate Rule XIX
Rule XIX is the key rule that provides a structure for debate on the Senate floor. A key provision of the rule states that when a Senator rises to seek recognition during floor debate, he or she is guaranteed a chance to speak on the question for as long as he or she wishes. The presiding officer is not given discretion in this matter and must recognize each Senator in order. During the period of time that a recognized Senator is speaking the question before the Senate cannot come to a vote. The Senator cannot be interrupted or be forced to stop their speech without their consent.
Debate Rule XIX does not limit the number of Senators who may speak on an issue. The rule does, however, limit each Senator to two speeches per legislative day on each issue. During a filibuster period the presiding officer will typically call a recess rather than an adjournment at the end of the calendar day, keeping the legislative day alive when the Senate reconvenes. This tactic effectively limits each Senator to a maximum of two speeches on each issue. It is possible, however, for a Senator to offer an amendment in order to create a new debatable question, on which the Senators may make two more speeches.
A relatively recent provision in Rule XIX, called the “Pastore Rule” in honor of Senator John Pastore of Rhode Island, requires that debate on a question must be germane to the question. During filibuster periods this rule is enforced to prevent Senators from making meaningless, off-topic speeches. During the 1930’s through the 1950’s several Senators, such as Huey Long and Strom Thurmond made long filibusters which included readings of recipes, the Congressional Record, the Declaration of Independence, and other non-germane topics.
While a Senator is speaking on an issue he or she must remain standing and must speak more or less continuously. During a filibuster-length speech this requirement creates fatigue in the speaker. However, the speaker may yield to a question from another Senator without losing the floor. The other Senator can provide relief by asking a very long question followed by a short answer, followed by more long questions. In this manner a group of Senators can work together to extend the length of a Senator’s speaking period.
Senate Rule XXII
The procedures for invoking cloture for purposes of wrapping up the floor debate and bringing the question to a vote are contained in Rule XXII. The process requires a motion that is signed by at least 16 Senators and presented to the presiding officer while the question is being debated. The rule requires that the cloture motion must be seasoned, meaning that it cannot be acted upon until the second day after it is presented.
One hour after the cloture motion has matured on the third day the presiding officer interrupts the Senate proceedings and presents the cloture motion to the Senate for a vote. At this point an automatic roll call vote is required.
In 1975 the Senate voted to change the number of votes needed to invoke cloture to 60% from the previous 67%. A compromise was struck, however, because some Senators feared that if changing the Rule was too easy that the majority needed to invoke cloture might be reduced further in the future. Therefore, the Senate agreed that to make future rule changes, including changing the cloture rule itself, would require the traditional 67% majority vote.
If the motion to invoke cloture is defeated the Senators can reconsider the vote or file a new motion to invoke cloture. For example, in 1988 there were eight cloture motions on a campaign finance reform bill and all eight motions were defeated.
If a motion to invoke cloture is successful, then the effect of invoking cloture only guarantees that a vote on the question will take place eventually, but not immediately. After the successful cloture motion has passed the Senate is said to be working under cloture. Rule XXII imposes a maximum cap of 30 additional hours for debate, quorum calls, parliamentary inquiries, and other proceedings prior to an actual vote on the question. During this cloture period each Senator is entitled to speak for a total of not more than one hour.
Once cloture has been invoked under Rule XXII, the point of a filibuster is largely lost. Without exception, proceedings are wrapped up in less than 30 hours and the question is brought to a vote.
Conclusion
The filibuster speech in the Senate has enjoyed a long tradition and has been used for several purposes. On one hand the filibuster has been used to persuade others of the validity of the minority position on a question. Open and unlimited debate can change minds and sway opinion. The filibuster speech process may help to defeat an issue once a vote is taken.
On the other hand, the filibuster has been used to stall or prevent a vote on an issue. The filibuster speech or the threat of a filibuster may cause the issue to be tabled or withdrawn and not brought to a vote on the floor.
The minority party in the Senate counts on the use of the filibuster as a means to prevent the majority party from wielding too much influence. Such a tool encourages the two major parties in the Senate to work in nonpartisan ways to resolve differences. The filibuster creates a need for compromise. It has been suggested that without the filibuster tool the Senate would be much less productive in producing legislation.
The Procedural Filibuster: a Brief History
Garry Gamber asked:
It has been many years since the last real filibuster was held in the U.S. Senate. In the meantime there have been numerous procedural filibusters, an interesting concept that is unique to our American political system. Here is a brief history about how the procedural filibuster came into existence.
The U.S. Constitution contains a provision that each house of Congress may determine their own set of rules and procedures. The early Senate adopted many of their rules from the British parliamentary experience. Traditional British parliamentary procedures included a section about the concept that allows a member to interrupt debate on an issue by raising a motion to call the “previous question.” If this motion is seconded and passed, then the question is put to an immediate vote with no further debate allowed. Thomas Jefferson wrote about this procedure in his Manual of Parliamentary Practice. Not surprisingly then, a similar procedure appeared in the list of rules used by the Continental Congress in 1788. In 1789 the rules adopted by the U.S. Senate also included a similar section about calling the “previous question.”
Vice President Aaron Burr, in his farewell speech to the Senate in March of 1805, recommended that the rule regarding the “previous question” be discarded since it had been used only once during the previous 4 years. When the rules were rewritten in 1806, the section about the “previous question” was omitted.
However, the rules of the Senate still granted authority to the presiding officer of the Senate, the Vice President, to use his discretion to bring to an end long, dilatory speeches and to disallow meaningless motions. In fact, John Adams, Thomas Jefferson, and Aaron Burr each used this power during their terms as Vice President.
As the years went by this power was viewed suspiciously as one that could potentially be abused. An incident in 1825 caused the Senate to revise their rules. Vice President Calhoun allowed Senator Randolph to ramble on daily over a three month period about irrelevant subjects, mostly personal attacks against President John Quincy Adams. Since Calhoun also did not like Adams he refused to exercise his power to bring Randolph’s remarks to a close. In 1828 the Senate revised their rules by requiring that all debate must be relevant to the question, but they did not eliminate the power of the presiding officer to limit debate.
That changed in 1872 when Vice President Schuyler Colfax ruled that “under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending matter.” At that point, then, unlimited debate on an issue became a real possibility. Real filibusters became an important tool for the minority.
Thus it stood until 1917 when Senate Rule 22 was adopted at the urging of President Wilson. The rule, which became known as the cloture rule, permitted the ending of debate on an issue with a two-thirds majority vote. The rule was first tested in 1919 when cloture was invoked to end debate in the Senate on the acceptance of the Treaty of Versailles, which ended World War I.
However, since a two-thirds majority was difficult to obtain, the use of the real filibuster increased. There are many famous instances and interesting stories regarding filibusters in the Senate over the next 50 years.
The cloture rule continued unchanged until 1975, when under President Ford and Vice President Rockefeller, Rule 22 was amended by a vote of 51-42 to allow a cloture vote to pass with a favorable vote by a three-fifths majority of the Senate membership. This lower requirement made it easier to invoke cloture on a debate to prevent a real filibuster.
However, the 1975 changes also made it possible for a filibuster to be “invisible.” With 60 votes needed to prevent a filibuster and 41 votes needed to prevent cloture, the 1975 rules changes allowed for 41 or more Senators to simply state that they intended to filibuster and the issue would be set aside. In that case the filibuster would be assumed and would not actually have to be performed. Thus, the “procedural filibuster” was born.
The advantage to this type of procedural filibuster is that other business of the Senate can be commenced without the delays and embarrassments of a real filibuster being necessary to remove the issue from further consideration. The disadvantage of this procedure is that it can potentially be abused. As a means to help prevent the abuse of the procedural filibuster, the majority leader retains the authority to force the minority to prove that they actually have the necessary votes to prevent cloture and to perform a real filibuster.
Since 1975 the procedural filibuster has been used successfully many times and has not been challenged. It is a powerful tool and one that is unique to our American political system.
It has been many years since the last real filibuster was held in the U.S. Senate. In the meantime there have been numerous procedural filibusters, an interesting concept that is unique to our American political system. Here is a brief history about how the procedural filibuster came into existence.
The U.S. Constitution contains a provision that each house of Congress may determine their own set of rules and procedures. The early Senate adopted many of their rules from the British parliamentary experience. Traditional British parliamentary procedures included a section about the concept that allows a member to interrupt debate on an issue by raising a motion to call the “previous question.” If this motion is seconded and passed, then the question is put to an immediate vote with no further debate allowed. Thomas Jefferson wrote about this procedure in his Manual of Parliamentary Practice. Not surprisingly then, a similar procedure appeared in the list of rules used by the Continental Congress in 1788. In 1789 the rules adopted by the U.S. Senate also included a similar section about calling the “previous question.”
Vice President Aaron Burr, in his farewell speech to the Senate in March of 1805, recommended that the rule regarding the “previous question” be discarded since it had been used only once during the previous 4 years. When the rules were rewritten in 1806, the section about the “previous question” was omitted.
However, the rules of the Senate still granted authority to the presiding officer of the Senate, the Vice President, to use his discretion to bring to an end long, dilatory speeches and to disallow meaningless motions. In fact, John Adams, Thomas Jefferson, and Aaron Burr each used this power during their terms as Vice President.
As the years went by this power was viewed suspiciously as one that could potentially be abused. An incident in 1825 caused the Senate to revise their rules. Vice President Calhoun allowed Senator Randolph to ramble on daily over a three month period about irrelevant subjects, mostly personal attacks against President John Quincy Adams. Since Calhoun also did not like Adams he refused to exercise his power to bring Randolph’s remarks to a close. In 1828 the Senate revised their rules by requiring that all debate must be relevant to the question, but they did not eliminate the power of the presiding officer to limit debate.
That changed in 1872 when Vice President Schuyler Colfax ruled that “under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending matter.” At that point, then, unlimited debate on an issue became a real possibility. Real filibusters became an important tool for the minority.
Thus it stood until 1917 when Senate Rule 22 was adopted at the urging of President Wilson. The rule, which became known as the cloture rule, permitted the ending of debate on an issue with a two-thirds majority vote. The rule was first tested in 1919 when cloture was invoked to end debate in the Senate on the acceptance of the Treaty of Versailles, which ended World War I.
However, since a two-thirds majority was difficult to obtain, the use of the real filibuster increased. There are many famous instances and interesting stories regarding filibusters in the Senate over the next 50 years.
The cloture rule continued unchanged until 1975, when under President Ford and Vice President Rockefeller, Rule 22 was amended by a vote of 51-42 to allow a cloture vote to pass with a favorable vote by a three-fifths majority of the Senate membership. This lower requirement made it easier to invoke cloture on a debate to prevent a real filibuster.
However, the 1975 changes also made it possible for a filibuster to be “invisible.” With 60 votes needed to prevent a filibuster and 41 votes needed to prevent cloture, the 1975 rules changes allowed for 41 or more Senators to simply state that they intended to filibuster and the issue would be set aside. In that case the filibuster would be assumed and would not actually have to be performed. Thus, the “procedural filibuster” was born.
The advantage to this type of procedural filibuster is that other business of the Senate can be commenced without the delays and embarrassments of a real filibuster being necessary to remove the issue from further consideration. The disadvantage of this procedure is that it can potentially be abused. As a means to help prevent the abuse of the procedural filibuster, the majority leader retains the authority to force the minority to prove that they actually have the necessary votes to prevent cloture and to perform a real filibuster.
Since 1975 the procedural filibuster has been used successfully many times and has not been challenged. It is a powerful tool and one that is unique to our American political system.
