Our usual indifference to language is a virtue and a vice. A virtue when we ease through words with unconscious fluency, a vice when we set upon words with unthinking presumption. They speak of filibusters, and they presume to know the word’s meaning. The filibuster must be condemned. Or vindicated. Destroyed. Or preserved. Reformed, curtailed, limited, weakened. It is a matter, they say, of pressing importance. But would we recognize the filibuster if we broke free from indifference? The filibuster is not simply, as one academic definition presumes, a “legislative behavior (or a threat of such behavior) intended to delay a collective decision for strategic gain.” That undifferentiating definition would serve the purpose of describing and delimiting a data set of dilatory parliamentary tactics, but it does not approach the distinctive character of the word filibuster. All filibusters are strategic dilatory tactics, but only some strategic dilatory tactics are filibusters.
Filibuster derives from the Dutch vrijbuiter. Like freebooter, its English cognate, a vrijbuiter was originally a plunderer of booty who ventured out free of both governmental sanction and constraint. It was this brazen daring beyond any established legal order that technically separated the freebooter from the privateer. Both seized and plundered, but only the privateer operated under the authority of a government by virtue of a Letter of Marque and Reprisal. The filibuster was simply a pirate. Of course, some pirates sailed and seized under the informal sanction of a government’s wink, and the privateer falling into the wrong hands might find his letter worth even less than a wink.
The old maritime filibuster acquired new terrestrial legs in the 19th century when, without any governmental authorization, private armies set out across Latin America and the Caribbean to wage wars of conquest and plunder. What these expeditions lacked in official sanction they sometimes partially made up for in winking public acclamation. Though they voyaged by boot rather than breeze, these marching filibusters were not so different from their old seafaring namesakes. The same criminal odor that hung once upon marauder ships now enveloped these invader camps; pirates of land not of sea, but pirates nonetheless.
Without legal security, without government backing, without anything to guarantee safety or success, it required courage to venture beyond an order’s limits. And it required courage as well to place the high stakes wager implicit in every filibuster: your reputation, your livelihood, your freedom, and your life against the intensity of your own personal energy.
Even as the word slid into the domain of parliamentary procedure, filibuster retained its piratical implication. The parliamentary filibuster is, in essence, a form of legislative piracy. This is not because it is a capricious affront to majority rule, an insult to preponderant opinion, and an embarrassment to good and efficient government. It is because mounting a filibuster means, first, declaring oneself unbound by normal order and decorum, second, venturing out beyond the bounds of ordinary and positive institutional support, third, then turning around and asserting a prerogative to be seen and heard by that same institution, and finally fourth, exercising irregular means to negate ordinary parliamentary practice in order to commandeer institutional control. Even if this seizure of power is not strictly prohibited under the rules, even if it is not precisely illegal, a legislative filibuster still carries the odor of the illicit.
But the filibuster is not without merit. Moderns forget that politics is more than a process for policy formation. It has since ancient times also been an arena of personal display and daring. The filibuster is a vestige of this old sensibility. Nothing can sustain and propel a filibuster except the energy of those undertaking it. That is why filibusters have such a revelatory quality; they show men for who they are, demonstrate character, prove caliber. But to reveal is to risk. A filibuster requires courage not only because it is inherently dangerous to shove aside institutional norms and stand outside the prevailing order for the purpose of defying and assailing it. It is dangerous as well because by filibustering you expose and thereby risk your standing and your reputation both within and beyond the parliamentary body. And you do so without any guarantee of policy success, indeed with a high probability of policy failure. But that matters little. It is enough for a filibuster to attest to the quality of both the conviction and the persona of the man undertaking it. There remains in us something cramped and neglected that savors such displays.
We have also forgiven the filibuster’s many faults because it is recognizable, not as an alien threat or offense, but as an eccentric, yet still internal, excess within the American political tradition. Energy in government is essential; a government destitute of energy cannot long endure. So we are told. With personal intensity on one side and institutional strength on the other, filibusters pit the energy of persons against the energy of institutions. Even if the filibuster excuses itself from institutional norms and rules, it does so without abandoning the founding principle that energy should counter energy.
Weak states must punish legal transgressions more harshly than strong states. To the weak state every transgression is dangerous and destructive, an intolerable humiliation to the state as the supposed guarantor of a legal order. While the weak state punishes every transgression with all the vigilance and force it can muster because it cannot allow its weakness to be exposed, a powerful and confident state can be more lenient. What are a few pirates to that sort of state? They are trifles, they pose no danger, they are barely noticeable. Transgressions do not require the whip if a wink will do. It is the wink, not the whip, that proves a state healthy and strong. The ability to wink is invigorating, and the winking state revels in its overflowing power.
A once strong Senate could wink at the occasional filibuster. No filibuster could overwhelm its vitality. The filibuster’s excess jolted the Senate, but that jolt did not numb and paralyze the body. Rather, the discharge added to the vigor, to the life, to the energetic spirit of government. And so even if not positively sanctioned, even if they transgressed the norms, the old robust Senate could smile slyly at filibusters and wink. What were a few filibusters to a sure and strong Senate?
Energetic normalcy punctuated by intense and passionate exceptions: this was formerly the way of the Senate. But the contemporary Senate is distinguished by the total absence of a regular order of action. Having forfeited its life as an active and able body, abeyance is now the Senate’s regular order of inaction. Lacking both the vitality to govern and the vitality to obstruct, the Senate has become a house of sloth, a chamber of indolence, a temple of abandonment. It withers and wastes. A filibuster is vigorous government’s jolting excess, but today there is only the ennui of abdication. Energy once opposed energy, but today enervation accords enervation. To filibuster is to risk and dare, but today the Senate blanches and cowers. The filibuster once aroused the revelry of potency, but today the Senate droops in drowsing impotence.
Curtail the filibuster? Weaken its power? Limit its application? Destroy it? These are confused, even foolish questions. Filibusters are irregular actions undertaken to interrupt a regular order of action, and they cannot exist in the absence of such an order. Far from usurping the Senate’s active order, the filibuster has already been abolished from the chamber’s parliamentary practice because the conditions that would permit the filibuster’s existence have themselves been dissolved. What no longer exists cannot be further curtailed, weakened or limited; what no longer exists cannot be further destroyed. We have fixated on phantoms and missed the phenomenon. The Senate has not been overrun by the filibuster; it has simply, and disgracefully, degraded from an acting body to a dilatory body.
Soon enough none will recognize the Senate’s corruption and disorder. Things are as they are, they will suppose. Already this debased condition has obtained defenders, as every order inevitably does. The addled champions of infirmity advise that it is better to decline any ability to govern today lest another Senate be able to govern tomorrow. It is a diseased argument that justifies a diseased institution. But not every disease has a ready cure, and not every diseased body wishes to be made well.