Why State Debates Don't Last Forever

 

If the United States Senate followed the rules of the New Jersey General Assembly, it wouldn't take 60 votes for Democrats to overcome a Republican filibuster. It would take 75, or three-quarters of the chamber, one of the highest such thresholds of any legislative body in the nation.

So why don't filibusters grind business to a halt in New Jersey as they do in the U.S. Senate?

The answer is right in the Assembly's rulebook . Along with the three-fourths requirement to shut off debate, there's a separate provision allowing members to suspend any rule they don't like with a simple majority vote. The three-fourths barrier to avoid a filibuster, in other words, can be rendered meaningless whenever the majority wants.

In New Jersey these days, that's good news for Democrats and bad news for Republicans, who control only 33 of the 80 seats in the Assembly. If the three-fourths requirement were enforced, Republicans might be able to derail or change Democratic-backed legislation by threatening to filibuster. Instead, they often have been relegated to the margins of the legislative process, at least until this year, when they gained a powerful ally as Republican Governor Chris Christie took office after six years of all-Democratic rule in Trenton.

New Jersey is in line with most states, where filibusters by the minority party — or even the threat of them — are nowhere near as common as they are in Washington, D.C. Only a small number of states require more than a simple majority of lawmakers to shut off debate, and even in states where the rules would seem to allow filibusters to happen, they rarely do.

Vermont, for example, is one of the few states where lawmakers cannot cut off debate under Senate rules. But that hardly matters. "There are only 30 senators," says Steve Marshall, assistant secretary of the Senate, "and for the most part they get along and they know how they're going to vote when they get up in the chamber. They don't need to filibuster."

New Jersey and Vermont are pretty typical cases. Filibusters are rare because chamber rules or local traditions prevent them. So do tight legislative calendars. Marshall notes that Vermont lawmakers work part-time and are not paid very much, and there's little appetite for staying in the capital any longer than necessary, which frequent filibusters would require them to do.

While the debate over filibusters is largely moot in the states, there are a handful of legislatures where they take place fairly often, including Alabama, Nebraska, South Carolina and Texas, and in some of these states the right to filibuster is fiercely protected.

In Texas and South Carolina, recent filibusters have come in response to one of the most openly partisan debates of the past two years, over efforts by majority Republicans to require that voters present photo identification at the polls. Democrats have vehemently opposed such "voter ID" laws, which they say can disenfranchise thousands of poor, elderly and minority residents who may not have driver's licenses or another form of photo identification. Republicans support the laws as a way to protect against election fraud.

Minority Democrats in South Carolina successfully filibustered a Republican voter ID bill in the state Senate in January, eventually winning concessions to make the identification process free and create an outreach campaign to encourage more residents to get the necessary documents. Democrats also demanded, and won, two weeks of early voting to ensure broader participation in elections.

In Texas last year, minority Democrats in the House of Representatives used a technique known as "chubbing" — in which legislators protract a discussion indefinitely by asking questions — to kill a Republican plan to require photo ID at the polls.

Filibusters are "just the tradition of the Senate," says Texas Senate Secretary Patsy Spaw, adding that she has seen members arrive on the floor in tennis shoes, indicating that they are planning to get comfortable and talk for hours. "If a member wishes to speak for an extended period of time, they are given that privilege. That's the way it is, even if you don't like it (or) it's wasting time."

Among the most prolific filibusterers in any state's history is former Nebraska Senator Ernie Chambers, who served a record 38 years in the Legislature before leaving in 2008 because of newly imposed term limits. Chambers is a legend at the unicameral statehouse in Lincoln, where for decades he used stalling tactics to defeat or change legislation he didn't like.

In 2002, when Nebraska's Legislature adopted a new rule making it easier to end filibusters, most observers agreed it was done in an attempt to stop Chambers from using them. Chambers himself believes the state's term-limits law was approved just to get him, and his delaying tactics, out of office. It may have worked, but Chambers says he has no regrets about the way he legislated during his career.

"In the legislative assembly, where you meet for a finite number of days, time is the most valued commodity. Whoever controls or manages time is the one who wins," says Chambers, who once bogged down a measure he opposed by seeking to enshrine in the state constitution the right of all Nebraskans to laugh, cough, itch, scratch, shear and barber. He himself is a barber by profession.

Even in states where filibusters are almost unheard of — at least in the form of endless talkathons with legislators orating for hours on the floor of a chamber — minority parties do have methods of delaying, strong-arming or embarrassing the majority. In 2003, Democratic state senators in Texas fled to New Mexico to strip majority Republicans of the quorum necessary to vote on a controversial redistricting plan. In Washington State last month, minority Republicans in the House of Representatives used their own stalling tactic to draw attention to Democratic legislation they opposed. The Republicans protracted a debate over a simple procedural matter — which committee a bill should be sent to — in an effort to cast an election-year spotlight on Democratic plans to reverse a vote of the people and increase taxes without the normally required two-thirds majority.

 
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