Senate Democrats have launched a filibuster against President Bush’s nomination of Miguel Estrada to the federal appellate court in Washington, D.C., until he gives more complete answers about his legal views. The Senate’s odd tradition of the filibuster—delaying a vote indefinitely by speaking for hour after hour on the Senate floor—could push back a decision on Estrada for weeks. It might even force Republicans to withdraw the conservative Hispanic lawyer from consideration. Why is the Senate allowed to use this anti-democratic stunt, and how does it work?
A filibuster is allowed because the Constitution gives each house of Congress the right to “determine the Rules of its Proceedings.” That means the Senate can run itself however it sees fit. With one short-lived exception, the Senate had no rule until 1917 to halt discussion on anything—reflecting the body’s long-standing commitment to unlimited debate. A single senator thus had the power to hold the entire body hostage on an issue, so long as he was prepared to keep talking about it. Hence the term “filibuster,” derived from the Spanish filibustero, or freebooter, meaning “pirate.” (That word ultimately goes back to a pair of Dutch words that mean “free” and “booty”—which may or may not be relevant to goings-on in the Senate.)
Technically, a filibuster is made possible by Senate Rule XIX, the rule governing floor debate, which directs any senator who wants to speak to “rise and address the Presiding Officer.” Once recognized by the presiding officer, a senator can keep speaking as long as he or she wishes, day and night, provided that the senator: 1) remain standing and 2) stay in the Senate chamber. This can be hard on: 1) the knees and 2) the bladder, which is why Strom Thurmond deliberately dehydrated himself in a sauna before taking to the floor for 24 hours and 18 minutes to rail against a civil rights bill in 1957.
While orating, a senator is permitted to drink only water or milk—the latter according to a ruling found in the encyclopedic Riddick’s Senate Procedure, a 1,500-page volume containing 200 years of rulings on arcane matters of Senate governance. Also, the senator may only speak two separate times on any one issue. Facing these constraints, senators who want to filibuster may tag-team, each sermonizing as long as possible—often until hoarse—before yielding the floor to the next speaker. Everyone is free to deliver a second speech on the issue, after which they can make motions or offer amendments—taking turns expounding upon those, too. The filibuster process can last for weeks or more, the record being 75 days in 1964.
Nor must a senator confine herself to the issue or nominee in question. Under Senate rules, senators can talk about anything when they have the floor. In 1935, Sen. Huey Long of Louisiana suspended passage of a bill by lecturing on the Constitution, section by section. When he ran out of text, he recited recipes for fried oysters and something called “potlikkers.” In the early 1990s, Sen. Al D’Amato resorted to song—including, one observer recalls—The Yellow Rose of Texas. And on Wednesday, Sen. Robert Byrd kept tradition alive by reminiscing about the courtship of his wife.
The strategy behind the filibuster is obvious—hold up other Senate business, creating pressure to put aside nominees or bills as everything else on the agenda gathers dust. The filibuster tends to be more effective near the end of a term, when Congress is racing to push through as much legislation as it can. But it can be a powerful tool at any point, signaling to the president, public, and press the heartfelt views of minority senators. Southern Democrats in the ‘50s and ‘60s, for example, threw everything they had into filibusters against civil rights legislation. They failed, but they stayed in the headlines for months.
While a filibuster would seem to be more taxing on the side doing the talking, that isn’t necessarily the case. The filibusterers need only one person in the Senate chamber at any one time, prattling away. The other side must make sure a quorum—a majority of all senators—is on hand, a constitutional requirement for the Senate to conduct business. If there’s no quorum after a senator has demanded a quorum call, the Senate must adjourn, giving those leading the filibuster time to go home, sleep, and delay things even more. To ensure a quorum during the rancorous civil rights filibusters, cots were set up in Senate anterooms, and majority senators presented themselves in bathrobes during early-morning quorum calls.
Those seeking a quorum can even demand that the Senate’s sergeant at arms arrest senators who aren’t present and drag them into the Senate chamber, a measure that has led to absent senators playing hide-and-seek with police officers around Capitol Hill. As recently as 1988, officers physically carried Sen. Robert Packwood onto the Senate floor at the behest of then-Majority Leader Byrd.
Filibustering was rare until the late 1800s. It then became steadily more common, leading to reform in 1917 when the Senate passed Rule XXII, the procedure for invoking “cloture,” or closure. According to the original Rule XXII, a vote by two-thirds of the Senate could kill a filibuster, a process first successfully used in 1919 to ensure a vote on the Treaty of Versailles. An amendment in 1975 reduced to 60 the number of senators necessary to halt a filibuster. In practical terms, therefore, a filibuster today is possible only if at least 41 senators support it.
Today, the threat of a filibuster often replaces the genuine article. Senators have grown accustomed to warning they will stage a filibuster and then watching the Senate move on to other business, secure that they’ll never actually have to pull an all-nighter. According to Sen. Byrd, it’s a “casual, gentlemanly, good-guy filibuster. … Everybody goes home and gets a good night’s sleep, and everybody protects everybody else.”
Not so with the Estrada nomination. GOP senators warn that this time around their Democratic colleagues will have to go through with the real thing. Republicans stayed late on Wednesday to force the Democrats to keep talking, and they may do the same tonight. In which case Sen. Daschle had better head for the sauna.