Senator Rand Paul's Filibuster: Some History and Context

 

 

First, exactly what is a filibuster and what is Senator Paul seeking to accomplish?

 

Although filibusters are commonly thought of as long dilatory speeches on the Senate floor, the term “filibuster” refers to any of a number of  tactics used to delay or defeat legislation or nominations.  Unlimited debate, along with the right of unfettered amendment, are the defining features of the U.S. Senate.  Together these features of the Senate protect the rights of the minority.

 

The filibuster is largely the consequence of the absence of a rule. Legislative bodies typically have a previous question motion which bring a matter to a vote.  After 1806, when it abandoned its previous question motion, debate in the Senate could not be ended until all senators were ready to vote.  In 1917, the Senate adopted Rule XXII, the so-called “cloture” rule which in its present form permits the Senate to end debate by a 60-vote supermajority.

 

Senator Paul is filibustering confirmation of the nomination of John Brennan to be Director of Central Intelligence.  He is fully aware that he cannot hope to block the confirmation and that is not his objective.  He is seeking to dramatize his opposition to the use of drones to attack U.S. citizens within the United States.  By holding the floor, he attracts national news attention and excites the social media.

Is this a common use of the filibuster? Has its usage changed over time?

 

“Lone wolf” filibusters conducted by a single senator or small group have a long history in the Senate.  They are not common because they are seldom successful. They can be overcome by merely waiting them out.  Far more common are filibusters conducted by all or most of the minority party.  If more than 40 senators take part, they can defeat cloture and the filibuster can be extended for weeks or months if necessary.  In many instances, when an effort to invoke cloture to end such filibuster fails, the legislation is withdrawn. In 1988, Majority Leader Byrd tried eight times to invoke cloture on a campaign finance reform bill before he gave up.

 

Does Senator Paul actually have to stand there and speak continuously in order to maintain the filibuster?

 

Yes. Under Senate Rule XIX once a senator is recognized, he/she can speak for as long as they wish.  The senator can be assisted by others who seek to ask him questions (often extremely lengthy questions), but he cannot yield the floor or he will lose his right to speak.  Senator Paul has been assisted by Senators Cruz, Lee, Wyden, Barrasso and others.

 

How long can it last, in theory and what is the record?

 

In theory, there is no limit.  As a practical matter, a lone-wolf filibuster is limited by human stamina.  The record is held by Senator Strom Thurmond who held the floor for 24 hours and 18 minutes in opposition to the 1957 Civil Rights Act.  The longest filibuster that I observed in my 34 years on Capitol Hill was waged by Senator Al D’Amato who spoke for more than 23 hours on a defense appropriations bill in defense of a Long Island firm’s contract to build jets for the military.

 

It is also true as you point out in your book Defending the Filibuster: The Soul of the Senate (co-authored with Robert B. Dove) that this is a very important element of the Senate and of American democracy. Why?

 

The right in the Senate to debate and amend serves as a protection to the minority, fosters deliberation and compromise, discourages unchecked majority control, moderates extreme outcomes, avoids precipitous decision making, discourages domination by the more populous states, ensures the role of the legislative branch in oversight of the executive and assures the role of the Senate as a counterbalance to the majoritarian House of Representatives in our system of checks and balances.

The productive functioning of the Senate requires a balance of rules protecting the minority and restraint in their use by senators. Senators have historically used these rules as leverage to foster pragmatism, compromise, and negotiation — in other words, what we call “legislating,” but have reserved the actual use of the filibuster for major confrontations.

 

You also explain that to filibuster does not necessarily mean to actively hold onto the floor in this fashion. What are some other ways it can be done?

 

Much of the normal functioning of the Senate is conducted through negotiated unanimous consent agreements. The denial of consent can often delay or defeat legislative efforts.  The mere threat of a filibuster can sometimes cause the majority leader to decide against taking up legislation or on occasion leads to the altering of that legislation. In the end, if more than 40 senators oppose a matter, the matter must be withdrawn or negotiations must follow to resolve differences.

 

Americans are fascinated by this tactic. From Mr. Smith Goes to Washington or the West Wing's episode "The Stackhouse Filibuster" it is also a classic way to dramatize a legislator acting with conviction. What are some of the great examples of the use of the filibuster in Senate history?

 

For many people, Jimmy Stewart’s portrayal of a freshman senator speaking until he collapses on the Senate floor is most of what they know about the filibuster.  In reality, a filibuster breaking out on the Senate floor is often the product of failed negotiation.  Throughout Senate history, the filibuster has actually played its greatest role in encouraging negotiation and compromise.  For example, in Defending the Filibuster, we describe the role it played in enabling the passage of the Alaska Lands Act.  Alaska’s senior senator Ted Stevens negotiated with Senator Tsongas and others.  Stevens wanted to resolve the status of federal lands in Alaska, about one-third of the entire state.  Tsongas knew Stevens had the right to filibuster.  As a result, he knew he could not overstep fairness in the negotiations and Stevens knew that he knew that.  In the end, the bill - that the president called the most important conservation measure of the 20thcentury - was enacted and has stood the test of time. 

 

In Mr. Smith Goes to Washington, famed broadcaster H.V. Kaltenborn, playing himself broadcasting from the Senate galleries, declares: “Half of official Washington is here to see democracy’s finest show, the filibuster, the right to talk your head off, the American privilege of free speech in its most dramatic form.”

 

Recently there have been several attempts to curb the filibuster's use through a variety of rule changes. What is the status of this push and what is likely to come of it?

 

On January 24, 2013, the Senate adopted a bipartisan filibuster reform through a series of rules changes and special orders.  The two resolutions passed to enact these changes passed with large supermajorities 78-16 and 86-9.  The changes are aimed at reducing the clearest abuses of the filibuster.  The majority leader was given new tools to enable him to bring legislation to the floor for debate and amendment without filibusters occurring on the procedural motion to take it up.  Other measures streamline the procedures necessary to bring a bill passed by the Senate to a conference committee with the House and to reduce the time for debate after cloture is invoked on many executive and judicial nominations.

Some of the proponents of reform, those who favored the so-called “constitutional option” or “nuclear option,” were disappointed that the reforms did not go farther.  That tactic would have entailed violating the existing Senate rules in order to end debate by simple majority vote and pass new rules.  In my judgment, this precedent, once established in the Senate would have inevitably led to the majority doing what majorities do: take control.  The Senate then would be a shadow of the House, where the majority doesn’t consult the minority but simply controls the process. Gone would be the Senate’s historic protection of the minority’s right to speak and amend. In the House, the majority tightly controls which bills will be considered; what amendments, if any, will be in order; how much time is allotted for debate; and when and under what rules votes occur. Often, no amendments are permitted.

 

 

http://secure.kennedyinstitute.org/updates/entry/senator-rand-pauls-filibuster-some-history-and-context

 

 

 

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Richard A. Arenberg

Brown University