In a scene familiar to many, the young senator passionately defends his state constituents through a 24-hour filibuster while the older senators refuse to listen, but as he grows weary there is a sudden change in perspective and his cause is accepted as the right choice for America. Mr. Smith Goes to Washington is a piece of political folklore that unfortunately conveys a one-sided message about the role of the filibuster in American politics.
The filibuster, from the Dutch word for pirate, arose out of the tradition of unlimited debate in the U.S. Senate, but it was rarely used in early congressional history. It was notably deployed in the 1930s by Senator Huey Long, who chose to read Shakespeare and recipes during his filibusters, to forestall bills favoring the rich over the poor. Additionally, it was used by Strom Thurmond in a record-holding 24 hours and 18 minutes to prevent a vote on the Civil Rights Act of 1957 and again by the Senate for 60 days to try to prevent adoption of the Civil Rights Act of 1964. The filibuster was first limited in 1917 by a Senate rule establishing cloture, a process for ending unlimited debate which now requires a 3/5 vote.
Recently, the filibuster has attracted national attention as senators use it as a means to highlight issues that may be tangential to the specific topic at hand. For example, Senator Rand Paul’s filibuster protested the use of drones against American citizens during the debate over President Obama’s nomination of John Brennan as director of the Central Intelligence Agency. In contrast with early American history, the filibuster is consistently used in the United States Congress as a political and procedural strategy to stop debate on a bill or nomination.
This is not simply a national tactic but one that extends to states as well. One such case is occurring in the Texas Senate this week as Senator Wendy Davis, D- Fort Worth, attempts to block an abortion bill from being voted on in the last hours of an emergency session ending at midnight tonight. The bill purports to end all abortions in Texas after 20 weeks gestation and would increase the standard of care required of clinics performing abortions.
Senator Davis’s plan is to filibuster for the remainder of the legislative session, effectively killing the bill for this session if she is able to stand near her desk and speak on topic for 13 hours. Unlike Mr. Smith in the famous Frank Capra movie, she will not be able to read the Bible or the Declaration of Independence but only material relevant to her point. According to Texas Senate Rule 4.03, Senator Davis cannot be interrupted but may respond to questions without ceding the floor.
The proposed bill passed the larger Texas House of Representatives and awaits only a vote in the Texas Senate. According to the Texas Constitution, there are 31 members of the state senate that meets every two years or when the governor calls a special legislative session (as is the case here). Additionally, there are reportedly 19 votes for the bill and 11 votes against the bill in the Texas Senate, with one member unable to vote. In a system without filibustering and with limits on debate, this bill would pass as the will of Texans represented by their state legislators.
The ultimate problem with the filibuster is that it is a fundamentally undemocratic tool to prevent discussion and action by legislative bodies. The filibuster’s purpose is to kill a bill within a specific timeframe—one person stopping a bill that thousands may have devoted many hours to crafting, debating, and explaining. Additionally, it allows one person to override the American principle of majority-rule (at least in the U.S. Senate where a 60% vote is needed for cloture). In tense political times when there is no legislative supermajority, a filibuster can prevent important legislation from a vote by the majority of members of the Senate, perhaps delaying or forever defeating a bill that had the votes to pass.
Unlike Mr. Smith’s movie, filibusters do not convince members to change their votes but are used as a delaying tactic and media ploy until a time limit is met (leaving an issue unresolved). There is no universal positive legislative purpose served by one person speaking endlessly on a topic—in Davis’s case for over 13 hours—without interaction and debate with other members of the legislature. Filibustering, in desperate need of reform as evidenced in Texas and U.S. history, is a legislatively created tool that can stop important and popular legislation by a procedural maneuver.
*Betsy Johnson is a law student and Blackstone Fellow serving at the Charlotte Lozier Institute.