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Don’t Say the “F” Word (and Other Myths about the Filibuster)

Posted on 25 September 2013 | 12:09 pm

U.S. Senator Ted Cruz (R-TX) now holds the record for the longest Senate speech since 1900. On September 25, 2013, Cruz ended his 21 hour, 19 minute hold of the Senate floor in his crusade against the Affordable Care Act (Obamacare).

[Related: Read ABC News coverage.]

But don’t call it a filibuster.

College of Charleston Political Science Professor Jordan Ragusa explains why the recent filibuster from Senator Ted Cruz is not the same as your grandfather’s filibuster. 

Jordan Ragusa, Political Science Professor

Jordan Ragusa, Political Science Professor

A filibuster (from the Spanish word “filibustero”) is a parliamentary procedure used to extend debate and delay voting on a legislative proposal.  When we think of filibusters, we think of Senator Strom Thurmond’s effort to block the Civil Rights Act of 1957 in which he spoke for 24 hours and 18 minutes (a record).

But it would be wrong to compare Cruz’s speech to Thurmond’s filibuster.  First, from 1957 until the 1970s, Senate bills were on a sequential list, where in order to vote on Bill 2 you had to first dispense with Bill 1.  Filibusters were very costly as a result and generated the long “talkathons” that most people think of when they hear the word “filibuster.”

However, in the 1970s the “two-track system” was created, whereby if Bill 1 is being filibustered the majority can simply skip it and proceed immediately to Bill 2.  As a consequence, modern filibusters are far less costly and rarely result in talkathons; if a filibuster is threatened, the majority proceeds until 60 votes can be found to limit debate on Bill 1 (known as enacting “cloture”).

Which brings us to Cruz’s speech: it isn’t a filibuster in the classic sense. Senator Harry Reid (D-NV) has already filed a cloture motion, and he has the 60 votes needed, which means that there is a limited about of time remaining for debate on the government funding bill.  While Cruz could exhaust all remaining time after cloture is enacted (15 hours), it won’t delay or block the bill beyond the “usual” procedural steps.

[Related: Read more about filibusters on Ragusa's blog, Rule 22.]

There are other filibuster myths as well.  For example, the filibuster is not “unconstitutional.”  Article 1 section 5 gives the House and the Senate the power to determine their own rules and proceedings (that’s right, whatever rule they can dream up).  Thus, the filibuster is constitutional precisely because the Senate created it.

Relatedly, a common claim is that the filibuster was created to protect numerical minorities and give them a voice in the Senate.   The reality is far less sexy: the filibuster arose because of a procedural accident.

When the first Senate convened in 1789, it adopted a “previous question motion,” which is used to close debate on a pending matter.  But in 1806 the Senate removed the previous question from its rule book (on the advice of Vice President Aaron Burr) for the simple reason that it was only used once prior to 1806.

At the time, the lack of a previous question motion wasn’t problematic for the Senate.  First, the Senate was about 1/3rds its current size.  Second, the Senate’s workload was much lower.  And third, the minority in this period was numerically small and thus less able to stymie the legislative process.  It wasn’t until 1837 that the first actual filibuster occurred.

By comparison, in the 112th Congress (2011-2012) there were 73 votes to enact cloture and end debate in the Senate.  Thus, while the filibuster is a confusing procedural device, it dominates the workings of the modern Senate.

But don’t call Cruz’s speech a “filibuster.”  While Cruz may accomplish a number political goals (for himself and his party), his efforts won’t block consideration of the government funding bill or lead to the repeal of the Affordable Care Act.

Jordan Ragusa can be reached at ragusajm@cofc.edu.

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