I, like most of my peers, am a great fan of Wikipedia.  It’s routine for me to check it when I’m out to learn something new.  And so, when I sought to learn more about the filibuster, the legislative technique whereby any Senator can halt debate by speaking indefinitely (or threatening to do so), that’s where I went.  After arriving at the page, a block of text caught my eye:

In a bit of good luck last spring, I was able to take an anthropology course devoted entirely to the culture of piracy. (Best decision ever.)  So I was familiar with the freebooters and the etymology of filibuster.  But I hadn’t, until the entry, wondered whether the spirit of the word was preserved in the technique as it’s used today.  Which brought on some thinking on the two groups the term links:

It’s easy to see how filibuster was co-opted to define a minority-protecting tactic.  Freebooters, like a lone Senator, had the comparative nimbleness to confound, fight, and outrun the larger ship, be it naval or the Ship of State’s upper chamber.  Both arose to introduce justice in exceptional circumstances.  With freebooters, the implement was obviously informal, piracy being illegal by the law’s letter.  But the powers of colonial America, as with leaders of states throughout history, were often corrupt and governed tyrranically.  Pirates, for their own moral failures (yes, they killed people) and their nuisances, were a foil to those powers.  The Senate internalized the same foil with the introduction of the filibuster.

But where the filibuster once was a tool for extraordinary circumstances, today it is used as a matter of routine, having increased more than fourfold from the middle of the 20th century to 2004; since Democrats won control of Congress in 2006 it has increased at a rate practically undefined as a curve:

[Source: Norman Ornstein, American Enterprise Institute.  March/April 2008]

The trend has lost no steam heading into the 111th Congress, either: two days ago, after 243 days of a filibuster, ten Republicans joined Democrats to vote for cloture on Judge David Hamilton’s nomination to the Federal Appeals Court in Chicago.  Hamilton, a current Federal Circuit Judge, is a graduate of Yale Law School, deemed a “highly qualified” rating from the American Bar Association, has a moderate record and was backed by the chamber’s Senior Republican, Richard Lugar.  Why, then, the filibuster?  He ruled on behalf of civil liberties advocates in a few of his cases.  And worse: he also was reported to have volunteered for ACORN after graduating from college over 30 years ago.

It’s reported that the Republicans who joined Democrats to end the block did so because they were embarrassed for the rest of their party, who is currently holding up nominees for reasons ranging from pedantry over inconsistencies in a would-be EPA official’s testimony to lashing out from general frustration over spending policies.

What started the trend?  The Monkey Cage, a blog of political science professors, wrote this August that after the Senate’s 1960 introduction de facto filibusters, by which a Senator needed only to threaten use of the tactic to halt proceedings, its use grew because its opportunity cost–which before was the chance of a filibuster failing after long hours spent maintaining it–went down.  And a positive feedback loop ensued: with little short-term downside, more Senators used the tactic more and more often.

In retrospect, however, the trend’s long-term cost is clear: A Congress and a President with the broadest popular mandate in a generation, tasked with a host of urgent, unarguable challenges, cannot act when the country needs it most.

To conclude with the etymology-connection: filibusteros are no longer filibusteros–the minority, regardless of their numbers, stops effectively being the minority–when they become the agent of tyranny.

Two things can be done to break the stagnation: The Senate Republicans can return to civility.  Or the Democrats will find their inner Captain and let the tiny minority know what happens when you obstruct a broad mandate from the American people.

A note to the reader: For a better understanding of piracy as they truly were–foils to the terror of the state and implements of terror themselves–I recommend Professor Marcus Rediker’s “Villains of All Nations”.

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