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When Nebraskans adopted the model of the Unicameral Legislature in 1934, one of the principal arguments in favor of the change was legislative efficiency. George Norris found the bicameral system particularly inefficient. The timing of the ballot initiative has also been credited with the adoption of the Nebraska unicameral experiment. The failure of the 1933 Legislature to address prohibition, tax reform, and appropriations “left a generally bad impression” among Nebraskans. Voters, facing the financial pressures of the Great Depression, demanded efficiency from state government and expected a responsive and adaptive legislature.
With striking echoes of the upheaval that led to the creation of the unicameral system, Nebraskans again express extreme frustration 85 years later at the failure of the Nebraska Legislature to address tax reform and many other issues. At the root of much of the legislative inaction is the increased use of the filibuster as a tool for obstruction of the legislative process by a minority of senators. Nebraska would be wise to look to the example of other states that effectively use the filibuster in moderation through common sense rules that require professionalism of the legislators engaged in the political tactic.
You won’t find the word “filibuster” in the Rules of the Nebraska Legislature. The term is used to describe a political tactic to extend debate with the intention of preventing a vote on a bill. Using various procedural motions, senators consume legislative time allocated to the floor debate of a bill, thereby preventing an up or down vote on the merits of the legislation. In order to overcome a filibuster, a cloture motion, which is a motion to cease debate, must pass. In Nebraska, a cloture motion requires a two-thirds majority vote in the affirmative, or 33 of the 49 senators voting to cease debate and vote on the underlying bill.
As a political tactic, the filibuster is as old as the reign of Julius Caesar. Cato the Younger exploited the rule that all business before the Roman Senate must conclude at sundown, debating an issue to the end of the day and preventing action. The filibuster is a controversial hallmark of the U.S. Senate. Most states have some form of extended debate, although the rules vary not only between states but often between the Senate and the House of a state.
Extended debate and the use of the filibuster is an important tool to allow minority interests in the Legislature to be heard. However, the purpose of extended debate in a legislative body is to allow the minority extra time and debate to make its perspective known, and, in doing so, attempt to convince the majority of its position. In a representative democracy, the ability of the minority to obstruct the will of the majority after having additional hours to present their case to fellow lawmakers and the public is nothing short of undemocratic.
Almost all states that permit extended debate have strict rules of conduct for lawmakers wishing to employ the tactics of the filibuster. Most common is enforcement of rules that require the discussion during the filibuster be germane to the legislation at hand. In many states, debate is ceased if legislators deviate from strict focus on the bill as few as three times. In Texas, legislators can’t eat, drink, use the restroom, sit, or even lean against their desk during a filibuster.
In most states, debate is not allowed to become overly personal. Members often are not allowed to refer to each other by proper name, and references to the executive branch, judicial branch or the actions thereof usually are not allowed. Indecent language and disorderly words are prohibited by most other states. If you have tuned in to the legislative coverage during a Unicameral filibuster, you know that is not the case in Nebraska, where debate meanders far off topic and the time is often filled with personal attacks against others in Nebraska government.
Among states that permit procedural execution of the filibuster, all have a mechanism for permitting a vote to end debate. Known as cloture, Nebraska has the highest threshold in the nation for ceasing extended debate. While most states require a simple majority of lawmakers voting or a three-fifths majority of elected members, Nebraska requires a two-thirds affirmative vote of the entire legislature. This threshold is higher than even an override of a gubernatorial veto. The wording of a cloture motion under Nebraska Legislative rules is “full and fair debate”, an inaccurate statement since most of the debate in the dozens of filibusters during my four years in the legislature was not germane to the bill on the agenda.
Nebraskans would be wise to carefully examine the rules in practice in the forty-nine other states that effectively protect the ability of minority interests to be represented without the needless gridlock experienced in Nebraska. When the 1933 Nebraska Legislature failed to adapt to the needs of Nebraskans, it spurred a successful ballot initiative intended to improve the efficiency of state government. If the Nebraska Legislature continues to be stalled on important tax reform and spending provisions by the obstruction of a small minority, citizens may need to look to history as a path toward a more effective legislative future.