Filibuster: Ms. Davis goes to Austin

June 28, 2013

Capitol B&WYou may have seen the news, or watched a few hours of it live, but Sen. Wendy Davis, a State Senator in Texas, almost single-handedly derailed an abortion-related bill that looked set to pass.  Because the Texas legislature was in a special session, it had to conclude its business within 30 days (per the Texas Constitution, TX CONST Art. 3, § 40).  The clock on that session ran out at midnight, on June 25, after 11 hours of speaking by Sen. Davis and two hours of parliamentary objections by others opposed to the bill.

Sen. Davis’s speech, along with a speech a few weeks ago by U.S. Senator Rand Paul, has reignited popular discussion of the filibuster as a technique for blocking legislation. (For those unfamiliar with the terminology, Black’s Law Dictionary defines the filibuster as “A dilatory tactic, esp. prolonged and often irrelevant speechmaking, employed in an attempt to obstruct legislative action.”)

Filibusters can have a huge impact on legal debates and the path of the law.  Despite this, they aren’t formally provided for anywhere in the law: Texas’s filibuster rules (which are far more restrictive than the federal rules) are found in special internal Senate rules, not anywhere in the state’s statutes or administrative codes (if you want to read those rules, they’re available on the Senate’s website).  In the U.S. Senate, there is no rule allowing for filibusters, merely the absence of a rule for calling the previous question (a parliamentary procedure to vote on the matter under debate). The U.S. Senate rules, like the Texas rules and the internal rules of most legislatures, aren’t codified in statutes and don’t carry the force of law (they’re available here, if you want to take a look).  See 48 HVJL 467 for more on the history of the filibuster.

Disputes over filibusters do occasionally spill over from the first branch of government to the third, though.  A WestlawNext search for the word “Filibuster” returns some interesting cases in All Federal materials.  Most of these involve litigants challenging Senate rules, alleging that favorable legislation would have passed but for the filibuster, and that their rights have thus been violated.  My favorite is a suit which sought enactment of the DREAM Act, Common Cause v. Biden.  I like it mainly because it’s a reminder that the Vice President’s official duties include being President of the Senate (and thus the proper party defendant in that suit).  That challenge, like all the others, failed.

There is even less case-law on filibusters at the state level, mostly cases similar to the Common Cause case, and a few on trial tactics (noting that the court can stop a lawyer during opening or closing arguments if he’s just wasting time).  All in all, there isn’t much law out there pertaining to the filibuster.  Perhaps that’s fitting, given that the tactic is most often aimed at preventing laws from coming about.