Robbins: Ontogeny, function and prognosis of the filibuster
At John Lewis’ recent memorial service, President Obama called for the extinction of the filibuster, calling it a relic of the Jim Crow South. This raises several questions. First, what exactly is a filibuster and, while we’re at it, why does it exist? From whence did the filibuster arise? What — and from where — did the allusion to Jim Crow arise? And if the ex-president is right, is it time to show the filibuster the door?
Let’s clear up one or two further distractions. “Ontogeny” more strictly refers to the development or developmental history of an organism. Close enough for metaphor and horseshoes. And why the word “prognosis” in my title? Well, it is the call of the president’s question. Can we plot the course of the filibuster’s demise?
Talking a bill to death
Now then, let’s first define our terms. A filibuster is a political procedure (or, perhaps better said, a ploy) where one or more members of a legislative body debate — or often blather — over a proposed piece of legislation. While this seems largely the very function of legislative falderal, what distinguishes a filibuster is the expressed (or just below the surface) intent to delay or prevent a decision being made on the matter, at least ostensibly, under consideration. In common parlance, a filibuster may be properly referred to as talking a bill to death. In the U.S., senators may bloviate thus but — perhaps owing to the sheer size of the body — members of the House may not.
In order to fill time — which is one of the main purposes of a filibuster — he or she who has the floor may stray far afield from the matter at least theoretically under consideration. Famously, in 2013, in an attempt to defund Obamacare, Sen. Ted Cruz palavered on for a marathon 21 hours and 19 minutes. Part of his performance — I kid you not — included the recitation of Dr. Seuss’ “Green Eggs and Ham” and reciting the lyrics of Toby Keith’s “Courtesy of the Red, White and Blue” into the congressional record.
Um … OK?
It would be proper to be asking yourself, other than pontificating that Sam in fact does not favor green eggs and ham, “What exactly is the point?”
How this all started
Filibusters go way back. To ancient Rome in fact. One of the first practitioners of the annoying art of filibuster was the Roman senator Cato the Younger. In debates over legislation he especially opposed, Cato would often obstruct the measure by speaking continuously until nightfall. As the Roman Senate had a rule requiring all business to conclude by dusk, Cato’s long-winded speeches were an effective dagger to forestall a vote.
In these United States, the filibuster finds no home in the Constitution. It first became a trembling possibility with a change of Senate rules in 1806 and was never used until 1837.
Essentially, the filibuster first arose by accident. It was never “established” by a specific act. Instead, it appears that the Mary Shelleyesque creation groaned to life owing to a revision of the Senate rules. Nature and the Senate abhorring a vacuum, when senators mistakenly deleted a rule empowering a majority to cut off debate, voilà, the Yankee Doodle filibuster was born. And, opportunists that they are, the senators quickly sniffed out an opportunity to obstruct instead of lead.
Although the filibuster predated the debates over slavery or segregation, it was wheedled and wielded as an opposition tactic in opposition to civil rights for more than a century. Exploitation of the filibuster repeatedly undermined adoption of measures to fully enfranchise and advance the rights of Black Americans.
The dull sword of filibuster was brandished in the pre-Civil War era, when filibusters were used to thwart admission of states seeking admission to the Union based upon their pro- or anti- slavery postures. During Reconstruction and the post-Reconstruction era, senators lobbed protracted filibuster harangues against bills endeavoring to assure civil rights. The filibuster was trotted out again to block anti-lynching bills in 1922 and 1935. Even the Civil Rights Act of 1965 was almost stymied by the filibuster.
So why Jim Crow?
Stated succinctly, Jim Crow was the racial caste system which operated mainly in southern and border states between 1877 and the mid-1960s. More than rigid anti-Black laws, Jim Crow was a way of life. Pure (or, perhaps not so pure) and simple, Jim Crow sanctioned racism.
But who or what was Jim Crow?
Oddly, Jim Crow was a white man.
In the early 1830s, the white actor Thomas Dartmouth “Daddy” Rice rocketed to stardom, performing minstrel routines in blackface as the fictional “Jim Crow.” Rice’s Jim Crow was caricature of a clumsy, dimwitted black slave. Eventually, Jim Crow’s popularity as a character died out. But in the late 19th century the phrase found new life as a blanket term for the wave of anti-black laws that crashed on southern shores following Reconstruction.
Two further things should be noted. Filibusters have been deployed to obstruct much more than civil rights. Second, there is a way to put a merciful end to a filibuster by the device of cloture. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.
Will the filibuster one day — perhaps soon — meet its demise?
It depends, I ‘spose, on who, precisely, has the floor.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com. Mr. Robbins’ new novel, "How to Raise a Shark (an apocryphal tail tale)," is available at Amazon.com.
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