Parliamentary Procedures

03/19/10

The word ''filibuster'' is derived from the dutch word ''vrijbuiter'' meaning ''freebooter''. From ''vrijbuiter'' the word entered the French lexicon as ''flibustier'' and then into Spanish as ''filibustero'' which translated into ''Pirate''. Its first English use as ''filibuster'' referred to Americans in the 1850's trying to overthrow Central American states. Today it's used to describe a parliamentary procedure for pirating or hijacking debate.


As a legislative tactic, the filibuster is as old as Ancient Rome and is employed in various versions by many western democracies. In the United States, the filibuster was killed in the House of Representatives in the mid 19th century but continues to exist in the Senate, where Senate rules permit a senator or group of senators to speak for as long as they like on any topic unless 3/5's of the body bring debate to a close through use of a cloture motion. Up until the 1960's, a filibuster was an endurance contest that would bring Senate business to a halt as no other business could be conducted until it ended. It required the adverse party to hold the floor continuously, but under tracking rules introduced by Robert Byrd of West Virginia, the majority leader when faced with a filibuster can set the matter aside and proceed with other business until the filibuster is withdrawn or ended through a cloture vote. Although this rule change has allowed the Senate to conduct business even while a filibuster is on, it has also led to a dramatic increase in the use of the tactic by the minority to frustrate the legislative agenda of the majority party. The current 111th Congress holds the record for filibusters, but it would be unfair to hold one party responsible for the increase in filibusters as the previous record was set when the Democrats were last in the minority. For this reason, some have advocated in recent years a return to requiring the filibuster to be conducted continuously and openly, in hopes of discouraging its use in anything less than extraordinary circumstances.

Reconciliation is a modern innovation stemming from the Congressional Budget Act of 1974. Reconciliation is used to instruct congressional committees to enact legislation that would bring spending, revenues or the debt ceiling into line with the current budget resolution. In effect, it allows Congress to act on budgetary matters by circumventing floor votes, thus shutting off the possibility of a filibuster. Although its intent was to improve the financial situation of the federal government, it applies to any changes in spending or revenue, and has been used by both parties to enact various policies, not all of which are strictly budgetary. 17 of the 23 reconciliation bills have been signed by Republican presidents, but one of the most far reaching reconciliation bills was signed in 1996 by President Clinton. The Consolidated Omnibus Budget Reconciliation Act of 1995 (often referred to as COBRA) contained provisions that give employees who lose their jobs the right to continue receiving health insurance under their group plan, at the employees' cost. Under President Bush, the Republican Congress used reconciliation three times to pass major tax cuts, each of which was predicted by the CBO to substantially increase the deficit.

The most controversial parliamentary procedure being discussed today is known as ''deeming'' and has been used by both parties since the 1930's, but according to this post on the Wall Street Journal's Law Blog, there are questions as to its constitutionality. Deeming involves creating a rule that says that if one bill is passed, another is deemed to have been passed as well. It allows the House of Representatives to vote on a package of amendments to a Senate bill that if passed would deem the Senate bill to have been passed as well. By voting only on the supplementary bill, congressmen can distance themselves from the main bill while still enacting the legislation. In the case of the current health care debate, it would also enable Congress to pass health care reform under the plan already enacted by the Senate without having to send the entire bill back to the Senate where Democrats no longer have a filibuster proof majority. The constitutional issue arises from Article 1 which requires ''Every Bill shall have passed….'' both the House and the Senate. Critics of deeming say that if the House enacts both the Senate bill and the package of changes in one vote while the Senate votes on each separately, then both chambers have not in fact passed the same bill.