When the US Constitution was being written, Thomas Jefferson was away as minister to France and could not engage in the debate about it. He came back not long after ratification and met his friend George Washington. The two Virginians were discussing government, probably because they had little else as common interests. There is a story saying that Jefferson was puzzled about the purpose of the upper house of the new American legislative branch - the Senate, and asked Washington about it. General Washington asked Jefferson 'Why do you pour coffee into your saucer?'. Jefferson replied 'To cool it.' and Washington said 'Even so, we pour legislation into the senatorial saucer to cool it.'

One of the ways that the Senate 'cools' legislation is the filibuster. The filibuster is one of the oddest oddities of the already very odd US Congress, but it's important. It is the popular term for the practice of engaging in unlimited debate so that an item of business in the US Senate cannot be voted on. Debate has to come before voting, and if debate runs on indefinitely there can't be a vote¹. This has the effect of killing the piece of legislation in question. In theory, one Senator could take advantage of the body's rules to kill any bill at any time based on his personal whims or extremist ideology.

The word 'filibuster' itself has an unusual and diverse history. It originally came from the Dutch word vrijbuiter², and was adopted into the French filibustier and Spanish filibustero to mean a freedom fighter or revolutionary. From the overtones of obstructionist tactics comes the English word.

So what prevents one crazy Senator from rambling on to kill bills? Rule 22 of the US Senate - or the Cloture rule. At the time of this writing, the rule states that if it is the will of three-fifths of the Senate, debate can be ended - breaking the filibuster. This means that in a 100-member senate, if 41 senators stand behind the filibuster, there ain't much that can be done to salvage the filibustered item. It's a bust.

While the filibuster could be considered a tool of obstruction, the idea of unlimited debate is more important than anything else. It gives the minority (the party in opposition) some leverage and power in the Senate, as long as it holds 41 seats (which would presumably mean that they have a respectable portion of the country as their constituents). The threat of a filibuster is a powerful thing, and can force a compromise, which prevents the government from becoming radical. As Washington put it, this cools the legislation.

To be fair, Washington probably never heard the world 'filibuster', unless he spoke Dutch, as the word means 'pirate' in that language. It is not mentioned in the Constitution at all and was not actually used until well after the Virginian's death. However, the US Constitution, in Article I, Section V, Clause II states that 'Each House may determine the Rules of its Proceedings...'. Both the Senate and House have seen twists and turns in their rules with regards to unlimited debate, and ended at different results. In the beginning, the rules of the Senate made it possible to force a vote on a bill, but in 1806, the Senate dropped that rule since it hadn't been used much. They did not know how much impact that decision would have.

The House of Representatives eventually adopted the 'Previous Question' rule, which allowed the leadership of the chamber to force a vote. However, the Senate preferred to keep its unlimited debate rule, and since there was an empowered minority at all times, it would have been difficult to change that anyhow. The filibuster was used sparsely in the early days of the Republic, and gained its name in the 1850s.

In 1917, Woodrow Wilson was trying to prepare the US for possible involvement in the Great War being fought across the Atlantic. He grew frustrated as his domestic and foreign agendas were being held up or thwarted in the Senate. He bitterly said:

Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.

He lost his patience after a while and demanded something that several American leaders (such as the legendary Henry Clay) had failed at putting in place before - a cloture, or closure rule in the US Senate. Eventually, this was made a rule - known as Rule 22. It said that if two thirds of the Senate passed a cloture motion, debate would be cut off. The percentage of the Senate required for cloture was later reduced to three-fifths in 1949, raised to two-thirds again in 1959 and finally reduced to three-fifths in 1975. This pretty much takes us to where we are, filibuster-wise, at the time of this writing.

So how does a Senator avoid any kind of filibuster? Well, you could... move to Mexico...

Actually, one thing that cannot be filibustered is a US Budget Reconciliation Bill. Since important programs, federal employees etc depend on the budget, it was decided that it was too important to be filibustered. West Virginia Senator Robert Byrd instituted a rule (named after himself) in the Senate that prevents non-budget items from being attached to the Budget Reconciliation Bill. Indeed, it's damn near impossible to not open up a bill to a filibuster if it's not budget-related.

Sitting in on a Filibuster

In the old days, one term describing the Filibuster was 'going to the diapers'. This was because there weren't bathroom breaks for the speakers.

The Senate was intended to be an august, dignified body that served as home to the wise men of each state, eventually giving seats to such greats as Daniel Webster, John F Kennedy and Henry Clay. Still, this respectable assembly had to go to the diapers on occasion.

Sitting through a filibuster was not pleasant, and delivering a filibuster was even more unpleasant - a filibustering Senator can not lean on anything, pause for very long, sit down or eat. The Senators listening were given cots and were fairly well prepared when they knew that a filibuster was imminent, but it was boring. However, that doesn't mean that the stories of the filibusters have to be!

It seems that the first real use of the filibuster was by the opponents of President Andrew Jackson³. Jackson had been censured, or reprimanded, by the US Congress. However, in 1837 Jacksonian Democrats came into power in the Senate and tried to strike down this reprimand from the record. A filibuster was mounted to stop this, but the censure ended up getting expunged anyways and Jackson is now on the 20 dollar bill so it never really made much difference anyhow.

In the 1930s, Huey Long, the colorful Democratic Senator from Louisiana practiced several filibusters. He was not quite a New Deal Democrat, and often used his time on the floor of the Senate to talk about how unconstitutional President Franklin Roosevelt's New Deal was. His most famous filibuster started on 12 June, 1935. He proposed that high level National Recovery Administration workers be required to be Senate-confirmable. Though it lasted 15 and a half hours, and it would have been dreadfully boring, there were some light points. He asked the Vice President (who presides over the Senate) to ensure that all of the senators present be made to listen to him. The VP shot back 'That would be unusual cruelty under the Bill of Rights.' When he finished talking about relevant things, Long offered to give any advice to any senator who wanted some. Some reporters outside of the chamber sent him notes asking for advice, though his colleagues did not. He then spoke about his recipes for some Louisiana cuisine. Eventually, the needs of his bladder superseded his political needs in importance, and he gave up his filibuster at four in the morning. Later, when he was asked how he managed to keep from relieving himself for so long, he said 'Why do you think I wore a navy blue suit?'

Long's filibuster was unusual. He was a member of the majority party, and he wasn't trying to kill any bill - he was trying to delay a vote on his bill, which was going to fail. But he was a bit of an odd guy. He was assassinated a year later.

In 1939, a film entitled Mr Smith Goes to Washington came out. It was hugely successful, and helped familiarise the public for the first time with the filibuster. It also romanticised the idea of the politically weak individual standing up to the powerful establishment. Starring Jimmy Stewart, it portrayed a young senator who engaged in a sole effort to bring down the establishment that dominated politics.

However, probably the best known filibuster belongs to Strom Thurmond, the Senator from South Carolina. He spoke for 24 hours and 18 minutes in 1957⁴, attempting to kill a Civil Rights bill. He apparently read various laws from the states, and took out a phone book and read it out loud. Yawn.

Types of Filibusters

There are two types of filibusters. The traditional filibuster, which is not very common anymore. It was the kind which involved diapers, phone books, etc where Senators speak non-stop for hours upon hours. The other type of filibuster is the procedural filibuster (or in the opinion of this researcher, a make-believe, pretend filibuster), which has become more common in modern times. This is not really based on the idea of unlimited debate, but is based on the notion that 41 or more votes in the Senate can block a bill. The minority simply says 'We're filibustering this'. Since the majority doesn't really want to know where citizens with last names A through G in the Washington, DC area live, they reply 'Oh, alright...'. If they wanted to, the majority always has the option of saying 'Prove it!' and making them use a traditional filibuster. The procedural filibuster is a kind of a way of blocking a bulldozer without having to lie down in the mud, as the character Ford Prefect attempted in the book Hitchhiker's Guide to the Galaxy.

One advantage of the procedural filibuster is that it's much more dignified. The Senate can move on to other business sooner, instead of playing a high stakes parliamentary game of 'chicken'. However, though the victor on important issues is not decided by who has stronger bladders, the minority is better off with the procedural filibuster. It's impossible to break a procedural filibuster without a cloture motion (or by changing the rules, which would be ridiculously hard to do). However, many a traditional filibuster has been broken through waiting the minority out and clearing the Senate schedule (which the Senate Majority Leader can do). They have to give up at some point. They're only human.

Another disadvantage of the procedural filibuster is that it's more likely to be abused. As the filibuster becomes easier to do, there are more of them, and the minority stops using the procedure to kill especially offensive, controversial or radical legislation and just filibusters anything it doesn't like. However, the procedural filibuster does facilitate compromise, as it's easier to threaten to filibuster if you're prepared to filibuster, thus scaring the bejeezus out of the majority so they tone down their legislation to make it more moderate.

Confirmation Filibusters

The filibuster makes the Senate more moderate and forces the majority party to make some concessions to the minority, instead of having the minority give up everything. However, Article II, Section II, Clause II of the US Constitution says that the Senate can confirm or reject 'Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States' who are nominated by the President.

Common sense tells us that you can't really compromise on a person being confirmed or rejected by the Senate. It doesn't make sense. A person must be confirmed or not confirmed, and the use of the filibuster to reach a compromise doesn't work in a confirmation setting. So the other purpose of the filibuster comes into play here - to kill items of Senate business that the minority finds especially offensive.

In 2005, this became an important issue, as President George Bush appointed several lower Federal Court judges who were filibustered by the minority Democratic party. Republicans threatened to disallow filibusters on judicial nominees (this was known as the 'Nuclear Option' in the media), and Democrats were attempting to preserve the filibuster. In the end, a compromise was actually reached, as some of the nominees were rejected, some were accepted and the filibuster was left intact with a vague proviso stating that the filibuster on judicial nominees must be used only in 'extraordinary circumstances'.

In fact, using the filibuster to kill a proposal has historically been used mostly in what the filibusterers would consider an extraordinary circumstance, and that standard will need to be upheld if the filibuster is to survive another 200 years.