Law and Disorder

Talk is cheap: Unless it’s a filibuster

By A.J. Wagner

This article is limited to a specific word count. The editor, Kyle Melton, will not let me do any more than that. If I decided I wanted to be heard beyond that I am sure I could purchase ad space, but the editorial content must be limited to allow for other writers, columns, opinions and advertising, The number of pages must be limited due to cost considerations. So you get about 800 words from me every week. That’s it.

When I was a judge I limited the time for jury selection, opening statements and closing arguments so that trials would have reasonable limitations. I actually considered this a favor to attorneys who, if given the chance, would go on and on beyond necessary explanation drifting into boredom, confusion and disinterest for the jurors.

I ran into a most pleasant woman at the grocery this week. After exchanging pleasantries she proceeded to tell me all about her children, her faith in God, her husband and her shopping habits. Had I not declared my need to move on, she would have told me much more.

We all know people who, when given the chance, will go on and on even when there is little of importance to say or substance to add to the conversation. But, in our everyday lives we find ways to limit such discussions so that conclusions can occur and we can move on. Not so in our United States Senate.

In the Senate, the time-honored parliamentary process of allowing a minority of one to bring the machinery of democracy to a halt does not limit such conversation. This process of opening up the floor to an individual senator or multiple senators to talk until sixty other senators can vote them silent is known as the filibuster.

“Filibuster” is a term deriving from the Dutch, which means “pirate” or “robber.” Filibusters were recorded as early as the time of Julius Caesar when Cato would talk until nightfall when business in the Roman Senate was concluded. By outlasting the session, no vote could be taken on a bill.

The House of Representatives did away with the filibuster in 1842. The House limits debate so that votes can be taken and business can be accomplished without the interference of a few.

On the other hand, the Senate, under Missouri Senator Thomas Hart Benton in 1841, embraced the filibuster. Benton and other Democrats were in the minority when they tried to block a bank bill proposed by Kentucky Senator Henry Clay. Clay tried to limit the debate, but could not because the rules of the Senate allowed for unlimited debate. It was not until 1917 when the Senate adopted Senate Rule XXII of the Standing Rules of the United States Senate, established by the Senate Committee on Rules and Administration, at the urging of President Woodrow Wilson.

Rule XXII permitted an end to debate with a two-thirds majority vote, a device known as “cloture.” Since 1975, cloture takes three-fifths, being sixty votes. Some of the more memorable filibusters include an attempt to prevent passage of the Treaty of Versailles, Louisiana Senator Huey Long’s attempts to prevent legislation favoring the rich and South Carolina Senator Strom Thurmond’s attempts to stop the Civil Rights Act of 1967. Thurmond holds the record for speaking in the Senate chambers for twenty-four hours and eighteen minutes straight. Perhaps the most famous filibuster, however, belongs to Jimmy Stewart as Senator Jefferson Smith in the movie, “Mr. Smith Goes to Washington.”

Rules have changed over the years so that today a senator does not have to stand on the floor for hours on end. All a senator need do is declare an intention to filibuster and 60 votes are then required to move a bill forward. No actual debate necessary. This is why, although Democrats have controlled the Senate for the past several years, nothing gets done without sixty votes.

The rules can be changed, but change requires a two-thirds vote when done during the session. Only on the first day of session in January can the rules be changed by a majority vote. That is why you are reading about the Democrats preparing to change the rules. A new session is only weeks away and Democrats are hoping to change the rules to make a filibuster more difficult. They are not proposing to eliminate it, only to take it back to a time when it took some sincere energy and effort to block legislation.

It is difficult to say whether there are enough votes to change Rule XXII but in Washington there is more talk about the possible change than there is about the $580 million lottery. After all what’s $580 million compared to the trillions of dollars in taxes, cuts and spending awaiting action in the Senate in 2013?

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 


A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.



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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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