Filibuster

A filibuster is a parliamentary procedure where debate over a proposed piece of legislation is extended, allowing one or more members to delay or entirely prevent a vote on the proposal. It is sometimes referred to as "talking out a bill" or "talking a bill to death"^[1] and characterized as a form of obstruction in a legislature or other decision-making body.

Etymology

The term "filibuster" ultimately derives from the Dutch vrijbuiter ("freebooter", a pillaging and plundering adventurer), though the precise history of its borrowing into English is obscure.^[2] The Oxford English Dictionary finds its only known use in early modern English in a 1587 book describing "flibutors" who robbed supply convoys.^[2] In the late 18th century, the term was re-borrowed into English from its French form flibustier, a form that was used until the mid-19th century.

The modern form "filibuster" was borrowed in the early 1850s from the Spanish form filibustero, and was applied to private military adventurers like William Walker who were then attacking and pillaging Spanish colonies in Central America.^[2] Over the course of the mid to late 19th century, the term "filibustering" became common in American English in the sense of "obstructing progress in a legislative assembly".^[2]

Ancient Rome

One of the first known practitioners of the 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.^[3] As the Roman Senate had a rule requiring all business to conclude by dusk, Cato's purposefully long-winded speeches were an effective device to forestall a vote.

Cato attempted to use the filibuster at least twice to frustrate the political objectives of Julius Caesar.^[3] The first incident occurred during the summer of 60 BC, when Caesar was returning home from his propraetorship in Hispania Ulterior. Caesar, by virtue of his military victories over the raiders and bandits in Hispania, had been awarded a triumph by the Senate. Having recently turned forty, Caesar had also become eligible to stand for consul. This posed a dilemma. Roman generals honored with a triumph were not allowed to enter the city prior to the ceremony, but candidates for the consulship were required, by law, to appear in person at the Forum.^[3] The date of the election, which had already been set, made it impossible for Caesar to stand unless he crossed the pomerium and gave up the right to his triumph. Caesar petitioned the Senate to stand in absentia, but Cato employed a filibuster to block the proposal. Faced with a choice between a triumph and the consulship, Caesar chose the consulship and entered the city.

Cato made use of the filibuster again in 59 BC in response to a land reform bill sponsored by Caesar, who was then consul.^[3] When it was Cato's time to speak during the debate, he began one of his characteristically long-winded speeches. Caesar, who needed to pass the bill before his co-consul, Marcus Calpurnius Bibulus, took possession of the fasces at the end of the month, immediately recognized Cato's intent and ordered the lictors to jail him for the rest of the day. The move was unpopular with many senators and Caesar, realizing his mistake, soon ordered Cato's release. The day was wasted without the Senate ever getting to vote on a motion supporting the bill, but Caesar eventually circumvented Cato's opposition by taking the measure to the Tribal Assembly, where it passed.

Westminster-style parliaments

United Kingdom

In the Parliament of the United Kingdom, a bill defeated by a filibustering manoeuvre may be said to have been "talked out". The procedures of the House of Commons require that members cover only points germane to the topic under consideration or the debate underway whilst speaking. Example filibusters in the Commons and Lords include:

• In 1874, Joseph Gillis Biggar started making long speeches in the House of Commons to delay the passage of Irish coercion acts. Charles Stewart Parnell, a young Irish nationalist Member of Parliament (MP), who in 1880 became leader of the Irish Parliamentary Party, joined him in this tactic to obstruct the business of the House and force the Liberals and Conservatives to negotiate with him and his party. The tactic was enormously successful, and Parnell and his MPs succeeded, for a time, in forcing Parliament to take the Irish Question of return to self-government seriously.
• In 1983, Labour MP John Golding talked for over 11 hours during an all-night sitting at the committee stage of the British Telecommunications Bill. However, as this was at a standing committee and not in the Commons chamber, he was also able to take breaks to eat.
• On July 3, 1998, Labour MP Michael Foster's Wild Mammals (Hunting with Dogs) Bill was blocked in parliament by opposition filibustering.
• In January 2000, filibustering directed by Conservative MPs to oppose the Disqualifications Bill led to cancellation of the day's parliamentary business on Prime Minister Tony Blair's 1000th day in office. However, since this business included Prime Minister's Questions, William Hague, Conservative leader at that time, was deprived of the opportunity of a high-profile confrontation with the Prime Minister.
• On Friday 20 April 2007, a Private Member's Bill aimed at exempting Members of Parliament from the Freedom of Information Act was 'talked out' by a collection of MPs, led by Liberal Democrats Simon Hughes and Norman Baker who debated for 5 hours, therefore running out of time for the parliamentary day and 'sending the bill to the bottom of the stack.' However, since there were no other Private Members' Bills to debate, it was resurrected the following Monday.^[4]
• In January 2011, Labour peers, including most notably John Prescott, were attempting to delay the passage of the Parliamentary Voting System and Constituencies Bill 2010 until after 16 February, the deadline given by the Electoral Commission to allow the referendum on the Alternative Vote to take place on 5 May. On the eighth day of debate, staff in the House of Lords set up camp beds and refreshments to allow peers to rest, for the first time in eight years.^[5]
• In January 2012, Conservative and Scottish National Party MPs used filibustering to successfully block the Daylight Savings Bill 2010–12, a Private Member's Bill that would put the UK on Central European Time. The filibustering included an attempt by Jacob Rees-Mogg to amend the bill to give the county of Somerset its own time zone, 15 minutes behind London.^[6][7]
• In November 2014, Conservative MPs Philip Davies and Christopher Chope successfully filibustered a Private Member's Bill that would prohibit retaliatory evictions. Davies's speech was curtailed by Deputy Speaker Dawn Primarolo for disregarding her authority, after she ordered Davies to wrap up his then hour-long speech. A closure motion moved by the government, which was agreed to 60–0, failed due to being inquorate.^[8][9]
• In October 2016 Conservative Minister Sam Gyimah filibustered a bill sponsored by John Nicolson of the Scottish National Party that would pardon historic convictions of homosexuality (which is no longer an offence), replacing an existing law that requires each pardon to be applied for separately.

The all-time Commons record for non-stop speaking, six hours, was set by Henry Brougham in 1828, though this was not a filibuster. The 21st century record was set on December 2, 2005 by Andrew Dismore, Labour MP for Hendon. Dismore spoke for three hours and 17 minutes to block a Conservative Private Member's Bill, the Criminal Law (Amendment) (Protection of Property) Bill, which he claimed amounted to "vigilante law."^[10] Although Dismore is credited with speaking for 197 minutes, he regularly accepted interventions from other MPs who wished to comment on points made in his speech. Taking multiple interventions artificially inflates the duration of a speech and thus may be used as a tactic to prolong a speech.

In local unitary authorities of England a motion may be carried into closure by filibustering. This results in any additional motions receiving less time for debate by Councillors instead forcing a vote by the Council under closure rules.

Northern Ireland

A notable filibuster took place in the Northern Ireland House of Commons in 1936 when Tommy Henderson (Independent Unionist MP for Shankill) spoke for nine and a half hours (ending just before 4 am) on the Appropriation Bill. As this Bill applied government spending to all departments, almost any topic was relevant to the debate, and Henderson used the opportunity to list all of his many criticisms of the Unionist government.

Australia

Both houses of the Australian parliament have strictly enforced rules on how long members may speak, so filibusters are generally not possible.^[11][12]

In opposition, Tony Abbott's Liberal National coalition used suspension of standing orders in 2012 for the purposes of filibustering, most commonly during question time against the Labor government.^[13][14]

New Zealand

In August 2000, New Zealand opposition parties National and ACT delayed the voting for the Employment Relations Bill by voting slowly, and in some cases in Māori (which required translation into English).^[15]

In 2009, several parties staged a filibuster of the Local Government (Auckland Reorganisation) Bill in opposition to the government setting up a new Auckland Council under urgency and without debate or review by select committee, by proposing thousands of wrecking amendments and voting in Māori as each amendment had to be voted on and votes in Māori translated into English. Amendments included renaming the council to "Auckland Katchafire Council" or "Rodney Hide Memorial Council" and replacing the phrase "powers of a regional council" with "power and muscle".^[16][17]

India

The Rajya Sabha (Council of states) – which is the upper house in the Indian bicameral legislature – allows for a debate to be brought to a close with a simple majority decision of the house, on a closure motion so introduced by any member.^[18] On the other hand, the Lok Sabha (Council of the people) – the lower house – leaves the closure of the debate to the discretion of the speaker, once a motion to end the debate is moved by a member.^[19]

Ireland

In 2014, Irish Justice Minister Alan Shatter performed a filibuster, he was perceived to "drone on and on" and hence this was termed a "Drone Attack".^[20]

Canada

Federal

A dramatic example of filibustering in the House of Commons of Canada took place between Thursday June 23, 2011 and Saturday June 25, 2011. In an attempt to prevent the passing of Bill C-6, which would have legislated the imposing of a four-year contract and pay conditions on the locked out Canada Post workers, the New Democratic Party (NDP) led a filibustering session which lasted for fifty-eight hours. The NDP argued that the legislation in its then form undermined collective bargaining. Specifically, the NDP opposed the salary provisions and the form of binding arbitration outlined in the bill.^[21]

The House was supposed to break for the summer Thursday June 23, but remained open in an extended session due to the filibuster. The 103 NDP MPs had been taking it in turn to deliver 20 minute speeches – plus 10 minutes of questions and comments – in order to delay the passing of the bill. MPs are allowed to give such speeches each time a vote takes place, and many votes were needed before the bill could be passed. As the Conservative Party of Canada held a majority in the House, the bill passed.^[21][22] This was the longest filibuster since the 1999 Reform Party of Canada filibuster, on native treaty issues in British Columbia.^[23][24]

Conservative Member of Parliament Tom Lukiwski is known for his ability to stall Parliamentary Committee business by filibustering.^[25][26] One such example occurred October 26, 2006, when he spoke for almost 120 minutes to prevent the Canadian House of Commons Standing Committee on Environment and Sustainable Development from studying a private member's bill to implement the Kyoto Accord.^[27][28][29] He also spoke for about 6 hours during the February 5, 2008 and February 7, 2008 at the Canadian House of Commons Standing Committee on Procedure and House Affairs meetings to block inquiry into allegations that the Conservative Party spent over the maximum allowable campaign limits during the 2006 election.^{[30][31][32][33][34]}

Another example of filibuster in Canada federally came in early 2014 when NDP MP and Deputy Leader David Christopherson filibustered the government's bill C-23, the Fair Elections Act at the Procedure and House Affairs Committee.^[35] His filibuster lasted several meetings the last of which he spoke for over 8 hours and was done to support his own motion to hold cross country hearings on the bill so MPs could hear what the Canadian public thought of the bill.^[36] In the end, given that the Conservative government had a majority at committee, his motion was defeated and the bill passed although with some significant amendments.^[37]

Provincial

The Legislature of the Province of Ontario has witnessed several significant filibusters,^[38] although two are notable for the unusual manner by which they were undertaken.^[39] The first was an effort on May 6, 1991, by Mike Harris, later premier but then leader of the opposition Progressive Conservatives, to derail the implementation of the budget tabled by the NDP government under premier Bob Rae. The tactic involved the introduction of Bill 95, the title of which contained the names of every lake, river and stream in the province.^[40] Between the reading of the title by the proposing MPP, and the subsequent obligatory reading of the title by the clerk of the chamber, this filibuster occupied the entirety of the day's session until adjournment. To prevent this particular tactic to be used again, changes were eventually made to the Standing Orders to limit the time allocated each day to the introduction of bills to 30 minutes.^[38]

A second high-profile and uniquely implemented filibuster in the Ontario Legislature occurred in April, 1997, where the Ontario New Democratic Party, then in opposition, tried to prevent the governing Progressive Conservatives' Bill 103 from taking effect. To protest the Tory government's legislation that would amalgamate the municipalities of Metro Toronto into the "megacity" of Toronto, the small NDP caucus introduced 11,500 amendments to the megacity bill, created on computers with mail merge functionality. Each amendment would name a street in the proposed city, and provide that public hearings be held into the megacity with residents of the street invited to participate. The Ontario Liberal Party also joined the filibuster with a smaller series of amendments; a typical Liberal amendment would give a historical designation to a named street. The NDP then added another series of over 700 amendments, each proposing a different date for the bill to come into force.

The filibuster began on April 2 with the Abbeywood Trail amendment^[41] and occupied the legislature day and night, the members alternating in shifts. On April 4, exhausted and often sleepy government members inadvertently let one of the NDP amendments pass, and the handful of residents of Cafon Court in Etobicoke were granted the right to a public consultation on the bill, although the government subsequently nullified this with an amendment of its own.^[42] On April 6, with the alphabetical list of streets barely into the Es, Speaker Chris Stockwell ruled that there was no need for the 220 words identical in each amendment to be read aloud each time, only the street name.^[43] With a vote still needed on each amendment, Zorra Street was not reached until April 8.^[44] The Liberal amendments were then voted down one by one, eventually using a similar abbreviated process, and the filibuster finally ended on April 11.^[45]

An ironic example of filibustering occurred when the Liberal Party of Newfoundland and Labrador reportedly had "nothing else to do in the House of Assembly" and debated between only themselves about their own budget after both the Conservative and NDP party indicated either their support for the bill or intent to vote.^[46]

Other

On 28 October 1897, Dr. Otto Lecher, Delegate for Brunn, spoke continuously for twelve hours before the Abgeordnetenhaus ("House of Delegates") of the Reichsrat ("Imperial Council") of Austria, to block action on the "Ausgleich" with Hungary, which was due for renewal. Mark Twain was present, and described the speech and the political context in his essay "Stirring Times in Austria".^[47]

In the Southern Rhodesia Legislative Assembly, Independent member Dr Ahrn Palley staged a similar filibuster against the Law and Order Maintenance Bill on 22 November 1960, although this took the form of moving a long series of amendments to the Bill, and therefore consisted of multiple individual speeches interspersed with comments from other Members. Palley kept the Assembly sitting from 8 PM to 12:30 PM the following day.

In the Senate of the Philippines, Roseller Lim of the Nacionalista Party held out the longest filibuster in Philippine Senate history. On the election for the President of the Senate of the Philippines in April 1963, he stood on the podium for more than 18 hours to wait for party-mate Alejandro Almendras who was to arrive from the United States. The Nacionalistas, who comprised exactly half of the Senate, wanted to prevent the election of Ferdinand Marcos to the Senate Presidency. Prohibited from even going to the comfort room, he had to relieve in his pants until Almendras' arrival. He voted for party-mate Eulogio Rodriguez just as Almendras arrived, and had to be carried off via stretcher out of the session hall due to exhaustion. However, Almendras voted for Marcos, and the latter wrested the Senate Presidency from the Nacionalistas after more than a decade of control.

On December 16, 2010, Werner Kogler of the Austrian Green Party gave his speech before the budget committee, criticizing the failings of the budget and the governing parties (Social Democratic Party and Austrian People's Party) in the last years. The filibuster lasted for 12 hours and 42 minutes (starting at 13:18, and speaking until 2:00 in the morning),^[48] thus breaking the previous record held by his party-colleague Madeleine Petrovic (10 hours and 35 minutes on March 11, 1993),^[49] after which the standing orders had been changed, so speaking time was limited to 20 minutes.^[50] However, it didn't keep Kogler from giving his speech.

United States

Senate

The filibuster is a powerful legislative device in the United States Senate. It is not part of the US Constitution, becoming theoretically possible with a change of Senate rules only in 1806, and never being used until 1837.^[51] It was strengthened in 1975^[52] and in the past decade has come to mean that most major legislation (apart from budgets) requires a 60% vote to bring a bill or nomination to the floor for a vote. In recent years, the majority has preferred to avoid filibusters by moving to other business when a filibuster is threatened and attempts to achieve cloture have failed.^[53] Defenders call the filibuster "The Soul of the Senate."^[54]

Senate rules permit a senator or senators to speak for as long as they wish and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn"^[55] (usually 60 out of 100 senators) bring debate to a close by invoking cloture under Senate Rule XXII.

The removal or substantial limitation of the filibuster is called the constitutional option by proponents, and the nuclear option by opponents. Under current Senate rules, a rule change itself could be filibustered, with two-thirds of those senators present and voting (as opposed to the normal three-fifths of those sworn) needing to vote to break the filibuster.^[55] Even if a filibuster attempt is unsuccessful, the process takes floor time.^[56]

On November 21, 2013, the Democratic controlled Senate voted 52 to 48 to require only a majority vote to end a filibuster of all executive and judicial nominees, excluding Supreme Court nominees, rather than the 3/5 of votes previously required. A 3/5 supermajority is still required to end filibusters on legislation.^[57] On April 6, 2017, the Republican controlled Senate voted 52 to 48 to require only a majority vote to end a filibuster of Supreme Court nominees.^[58]

State legislatures

Only 13 state legislatures have a filibuster:

• Alabama
• Alaska
• Arkansas
• Connecticut
• Florida
• Hawaii
• Idaho
• Maine
• Nebraska
• South Carolina
• Texas
• Utah
• Vermont

House of Representatives

In the United States House of Representatives, the filibuster (the right to unlimited debate) was used until 1842, when a permanent rule limiting the duration of debate was created. The disappearing quorum was a tactic used by the minority until Speaker Thomas Brackett Reed eliminated it in 1890. As the membership of the House grew much larger than the Senate, the House had acted earlier to control floor debate and the delay and blocking of floor votes.

France

In France, in August 2006, the left-wing opposition submitted 137,449 amendments^[59] to the proposed law bringing the share in Gaz de France owned by the French state from 80% to 34% in order to allow for the merger between Gaz de France and Suez.^[60] Normal parliamentary procedure would require 10 years to vote on all the amendments.

The French constitution gives the government two options to defeat such a filibuster. The first one was originally the use of the article 49 paragraph 3 procedure, according to which the law was adopted except if a majority is reached on a non-confidence motion (a reform of July 2008 resulted in this power being restricted to budgetary measures only, plus one time each ordinary session – i.e. from October to June – on any bill. Before this reform, article 49, 3 was frequently used, especially when the government was short a majority in the Assemblée nationale to support the text but still enough to avoid a non-confidence vote). The second one is the article 44 paragraph 3 through which the government can force a global vote on all amendments it did not approve or submit itself.^[61]

In the end, the government did not have to use either of those procedures. As the parliamentary debate started, the left-wing opposition chose to withdraw all the amendments to allow for the vote to proceed. The "filibuster" was aborted because the opposition to the privatisation of Gaz de France appeared to lack support amongst the general population. It also appeared that this privatisation law could be used by the left-wing in the presidential election of 2007 as a political argument. Indeed, Nicolas Sarkozy, president of the Union pour un Mouvement Populaire (UMP – the right wing party), Interior Minister, former Finance Minister and former President, had previously promised that the share owned by the French government in Gaz de France would never go below 70%.

Hong Kong

The first incidence of filibuster in the Legislative Council (LegCo) after the Handover occurred during the second reading of the Provision of Municipal Services (Reorganization) Bill in 1999, which aimed at dissolving the partially elected Urban Council and Regional Council. As the absence of some pro-Establishment legislators would mean an inadequate support for the passing of the bill, the Pro-establishment Camp filibustered along with Michael Suen, the then-Secretary for Constitutional Affairs, the voting of the bill was delayed to the next day and that the absentees could cast their votes. Though the filibuster was criticised by the pro-democracy camp, Lau Kong-wah of the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) defended their actions, saying "it (a filibuster) is totally acceptable in a parliamentary assembly."^[62]

Legislators of the Pro-democracy Camp filibustered during a debate about financing the construction of the Guangzhou-Shenzhen-Hong Kong Express Rail Link by raising many questions on very minor issues, delaying the passing of the bill from 18 December 2009 to 16 January 2010.^[63] The Legislative Council Building was surrounded by thousands of anti-high-speed rail protesters during the course of the meetings.

In 2012, Albert Chan and Wong Yuk-man of People Power submitted a total of 1306 amendments to the Legislative Council (Amendment) Bill, by which the government attempted to forbid lawmakers from participating in by-elections after their resignation. The bill was a response to the so-called 'Five Constituencies Referendum, in which 5 lawmakers from the pro-democracy camp resigned and then joined the by-election, claiming that it would affirm the public's support to push forward the electoral reform. The pro-democracy camp strongly opposed the bill, saying it was seen a deprivation of the citizens' political rights. As a result of the filibuster, the LegCo carried on multiple overnight debates on the amendments. In the morning of 17 May 2012, the President of the LegCo (Jasper Tsang) terminated the debate, citing Article 92 of the Rules of Procedure of LegCo: In any matter not provided for in these Rules of Procedure, the practice and procedure to be followed in the Council shall be such as may be decided by the President who may, if he thinks fit, be guided by the practice and procedure of other legislatures. In the end, all motions to amend the bill were defeated and the Bill was passed.

To ban filibuster, Ip Kwok-him of the DAB sought to limit each member to move only one motion, by amending the procedures of the Finance Committee and its two subcommittees in 2013. All 27 members from pan-democracy camp submitted 1.9 million amendments.^[64] The Secretariat estimated that 408 man-months (each containing 156 working hours) were needed to vet the facts and accuracy of the motions, and, if all amendments were admitted by the Chairman, the voting time would take 23,868 two-hour meetings.

Filibustering is still an on-going practice in Hong Kong by the pan-democratic party, but at the same time, the pan-democratic party are under-going huge amounts of fire for making filibustering a norm in the Legislative Council

Italy

In Italy, filibustering has ancient traditions and is expressed overall with the proposition of legal texts^[65] on which interventions take place.^[66]

Iran

In Iranian oil nationalisation, the filibustering speech of Hossain Makki, the National Front deputy took four days ^[67] that made the pro-British and pro-royalists in Majlis (Iran) inactive. To forestall a vote, the opposition, headed by Hossein Makki, conducted a filibuster. For four days Makki talked about the country's tortuous experience with AIOC and the shortcomings of the bill. Four days later when the term ended the debate had reached no conclusion. The fate of the bill remained to be decided by the next Majlis.^[68]

South Korea

South Korean opposition lawmakers started a filibuster on February 23, 2016 to stall the Anti-Terrorism bill, which they claim will give too much power to the National Intelligence Service and result in invasions of citizens' privacy. As of March 2, the filibuster completed with a total of 193 hours, and the passing of the bill.^[69] South Korea's 20th legislative elections were held 2 months after the filibuster, and the opposite party the Minjoo Party of Korea won more seats than the ruling party the Saenuri Party.

See also

• Justice delayed is justice denied
• Constitution of the Roman Republic
• Gaming the system
• Liberum veto
• "The Stackhouse Filibuster" – an episode of The West Wing
• Obstructionism

References

Notes

Media

External links

Look up filibuster in Wiktionary, the free dictionary.

• Archive of the amendment debates, 2 April 1997 (Canada, Toronto) in the Provincial Hansard. The filibuster extends from section L176B of the archive to L176AE; the Cafon Court slip-up is in section L176H, Stockwell rules on the issue of repetition in L176N, and Zorra Street is reached in L176S.
• Congressional Quarterly 101 Filibuster