Okay, so what’s going on in the Senate Wednesday night is not really a filibuster, in the sense we usually understand that term today. But should that mean we can’t have some fun with the word filibuster?
It’s one of those words that just gets people’s attention. And let’s face it, not that many words from congressional procedure do that.
The word came to English from the Spanish filibustero in the 1800s, and had a root in the Dutch word Vribuiter or “freebooter.” The original reference was to a free-ranging mercenary who traveled around fomenting rebellion.
The word first appeared in Congress in the 1850s as a metaphor, when one particular debate got out of control and lasted so long it seemed to be disrupting the government. Somebody called the delaying members filibusteros and it stuck.
That first filibuster actually happened in the House, but the term found a permanent home in the Senate, where the rules permitted unlimited debate. That permission was hugely empowering to the minority party and to individual senators. Even after it was curtailed by the introduction of cloture votes (cutting off debate) a century ago, the individual right to unlimited debate remains a key part of any and every senator’s power.
It was immortalized by Jimmy Stewart in the classic 1939 film Mr. Smith Goes to Washington, where an idealist freshman senator holds the floor to stop an objectionable bill until he collapses in exhaustion. But “live filibusters” of that sort have been out of fashion for decades now, pretty much since the record-setting filibuster of the 1964 Civil Rights Act.
Since then, the filibuster has evolved. It is now used to stop legislation even before it reaches the stage of a floor debate. One or more senators inform the majority leader they expect “extended debate” on some piece of business. The leader then files for cloture on the motion to proceed to the bill.
Cloture requires 60 votes, which means a bipartisan super-majority must favor going forward. Typically, cloture is not invoked, and the leader quietly lays that bill or nomination or whatever aside. And that’s that. The filibuster has worked and 99 percent of the world at large never knows it happened.
Right now, all those senators out there talking the night away are not really trying to stop a particular bill from being passed — or prevent a vote or a debate on it. There is already a bill on the floor under consideration, an appropriations bill that most of the Senate will eventually vote for.
But the long-winded speeches this evening do have a serious intent. They are trying to draw attention to the state of gun control legislation in the wake of the Orlando massacre. They are calling for universal background checks and people on “no fly” watch lists at airports. These ideas have popular support in polls but have been opposed by Second Amendment advocates, also known as the gun lobby.
The funny thing is that what these senators are doing does look a lot like what a filibuster used to be. They are disrupting the normal procedure, hijacking the vehicle of the Senate if you will. But they are only going to do it for a day or two, in all likelihood, to make a point.
In this sense, the talk-a-thon begun by Sen. Chris Murphy, D-Conn., functions much like the 10-hour disquisition of Sen. Rand Paul, R-Ky., in May 2015. Paul was highlighting the collection of phone numbers by the National Security Agency, calling it a Big Brother intrusion on private citizens.
We have also recently seen multi-hour sermons delivered by Sen. Ted Cruz, R-Texas, decrying Obamacare, and by Sen. Bernie Sanders, I-Vt., previewing many of the points about income inequality and money in politics that featured in his campaign for president this year.
Paul and Cruz also, as it happens, ran for president this year.
But none of these events, for all their evocation of Jimmy Stewart’s cinematic heroics, was really a filibuster.
The filibuster, like so much of the Senate’s procedure, is all about making it harder to pass or approve or move forward on something someone opposes.
And the filibuster works, and has always worked in one way or another. Because the easiest thing to do on Capitol Hill is to slow the Senate down. The institutional bias is to counter the will of the president and retard the haste of the House. And if the Senate cannot always put up a red light indefinitely, it can certainly default to a flashing yellow and go green only grudgingly.