Texas filibuster rules

There’s a good run down of Texas’ rules for filibuster here (which gives you a better idea of the massive, heroic task that Wendy Davis undertook for her state). But as has been discussed in the comments here, these rules for filibuster seem remarkably, shockingly ableist. Conditions laid down for filibuster include:

Rule 3.02 prohibits eating or drinking in the Senate chamber.

Rule 4.01 requires a member of the Senate to stand at his or her desk to address the Senate. The member speaking may not sit, lean, or use a desk or chair in any way. Bathroom breaks are not allowed.

Rule 4.03, which governs the interruption of a member who is speaking, allows other senators to raise objections if a speaker does not confine his or her remarks to the issue under consideration or if his or her voice is inaudible.

So you cannot filibuster if you are a wheelchair user. You cannot filibuster if you are hypoglycemic. You cannot filibuster if you use various types of mobility aid. You cannot filibuster if you have such a stunning array of disabilities that the mind boggles.

How is the legal? That’s not rhetoic, that’s a serious question. How are these rules not a flagrant violation of the ADA?

11 thoughts on “Texas filibuster rules

  1. I’d be surprised if ADA governed government bodies, esp. state legislators. Similarly, Congress exempts itself from all sort of labor laws including antidiscrimination law. Looking at this:

    The ADA prohibits discrimination on the basis of disability in employment, State and local government services, public transportation, public accommodations, commercial facilities, and telecommunications.

    Filibustering falls under none of these. Hmm. Looking at this clause also seems to leave some wiggle room.


  2. I’ve put out an inquiry to some disability lawyers — we’ll see what turns up, but my first thought was perhaps a Title II issue.

  3. […] To begin with, we had an incredible act of heroism yesterday when Texas State Senator Wendy Davis filibustered for nearly ten hours to keep the passage of anti-choice legislation from passing.  Ten hours in which she wasn’t allowed to lean on a desk, sit-down, take a break, or stray off topic.  See Feminist Philosophers for all the filibuster rules: https://feministphilosophers.wordpress.com/2013/06/26/texas-filibuster-rules/ […]

  4. Ms. Burke, I will be very interested to see what they say. I’ve been trying to research this topic since a colleague brought up this same point that the filibuster rules seem to be incredibly discriminatory against people with a wide array of disabilities.

  5. I understand that what Davis was certainly an extraordinary physical feat but, in regards to what you mentioned about the rules being discriminatory, I have to counter it with this: how completely relevant is this issue? Upon further research I have found a list of all disabled politician and I have noticed that none of them are a part of the Texas State Legislature. Unless I have mistakenly missed someone, and I would apologize for that, I do not necessarily see the problem. These stricter rules, which have been rightfully picked out as a state power, do not interfere with disabled persons because they are not currently present in this political body. Yes, there is still plenty of time to gain disabled members in the legislature, but for now it is not an issue. What an excellent observation though! I have been studying filibusters recently and it had not crossed my mind that disabilities could be a problem. We certainly have some thinking to do about what adjustments should be made if disabled persons are elected to the state legislature or congress and, if these adjustments are made, will they be seen as unfair to those without disabilities? All wonderful things to consider!

  6. How is it relevant to the rules being discriminatory are the discriminatory rules (which is the issue discussed in this post)? Pretty relevant, I’d say.

    As to whether their discriminatoriness is active, I’d be very much interested in your “list of all disabled politician” (everywhere? who compiles it?). Many disabilities are hidden or not acknowledged. I’m not sure by what rationale physical and mental stamina (of a certain kind) is superrelevant to the legislative process. (What’s the age spread of members?)

  7. Another, think about this as an analogous claim: the fact that our building doesn’t have a ramp isn’t discriminating against people in wheelchairs, because no one in a wheelchair has ever tried to get into our building. I’d say that, no, you’re still discriminating, because *if* a wheelchair user tried to get into your building, they wouldn’t be able to. The point of accessibility is that spaces should be *in principle* open to all comers, whether disabled or otherwise. Likewise, the Texas legislature rules are discriminatory whether they are in fact currently disadvantaging any disabled people (though Bijan’s point is a really important one).

    It’s also important to consider direction of explanation. Discriminatory rules, just like discriminatory structures, can be a way of excluding disabled people – they can be a way of signalling ‘this isn’t for people like you’. Maybe it’s true, of our imaginary building, that no wheelchair user had ever tried to gain entry to it. But maybe the reason *why* that’s true is that they knew the building didn’t have a ramp, decided trying to gain entry wasn’t worth the bother, and rolled on to more accessible environments.

  8. Hi,

    Bijan, ADA strictures and remedies do seem to apply to state governments. Look at Subchapter II of Chapter 126.

    ‘Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.’

    And then,

    ‘As used in this subchapter:
    (1) Public entity
    The term “public entity” means—
    (A) any State or local government;

    But the United States itself is exempted as an ’employer’ in §12111.


  9. Hi slideraway,

    Yeah, I saw those bits, but there’s two problems:

    1) It’s very unclear that any of this attaches to aspects of public office. The obvious intent was for “government facing the public” type stuff, not clearly “government facing government”.

    2) There’s some question of how this is enforced:

    You may wonder, first of all, why there would be any question about whether a state official could be sued for violating federal law. The answer lies in the federalist revolution of the 1990s. Returning to a largely ignored, century-old precedent, in a series of 5-to-4 decisions, the Rehnquist Court held that under the doctrine of “sovereign immunity,” a state could not be sued without its own consent. In particular, the Court held that states could not be sued by their citizens for violating the Americans With Disabilities Act and the Fair Labor Standards Act.


  10. Just Another may be assuming that disabilities are visible to everyone else, that individuals currently in government self-disclose every form of disability they may already suffer, and that accommodating one person must necessarily take away something from another person. These are mistaken assumptions, but I’m grateful to Just Another for sharing these thoughts; I point out the assumptions because it is good to make them explicit and examine them more carefully whenever possible.

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