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Should the Senate Return to Old-Style Filibusters?

5 years ago
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Once upon a time, boys and girls, the Senate filibuster was not the bloodless procedural agreement we have today. No, sir (or madam). Minority senators who wanted to hold the podium had to grip that lectern and keep on actually talking.

The official U.S. Senate Web site takes note of those halcyon days:

During the 1930s, Senator Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor. The Louisiana senator frustrated his colleagues while entertaining spectators with his recitations of Shakespeare and his reading of recipes for "pot-likkers." Long once held the Senate floor for 15 hours. The record for the longest individual speech goes to South Carolina's J. Strom Thurmond who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.

That all changed in 1975, with the adoption of new rules by the Senate. In addition to the stuff that went down on paper, the filibuster could be invoked merely by the minority leader letting the majority leader know it was coming. And if the majority leader could count on fewer than 60 votes on his side, both parties agreed that the filibuster was on.
Which brings the story to where we are today. And to my question: Would it be better or worse if the filibuster were returned to its messy roots? If the threat had to be followed up (at least sometimes) with an actual series of senators taking the floor and reading the phonebook or whatever?

On the one hand, a modern version of Huey Long might become a YouTube sensation with fans hanging on his every recipe. On the other, how might the politics play if Americans could watch the Senate grind to a halt, live and in interminable color?

I asked a couple of fellows who literally wrote the book on the Senate filibuster. No kidding: "Filibuster: Obstruction and Lawmaking in the U.S. Senate."

Gregory Wawro is a political science professor at Columbia University. Eric Schickler is a political science professor at the University of California, Berkeley. Their book was published in 2006. I sent them each an e-mail asking whether the Democrats would need to change the rules to return the old style filibuster, and what they thought the effect might be if that happened.

Schickler's reply:

There is nothing in the rules to stop the Democrats from forcing Republicans to hold the floor -- the GOP did it one night a few years ago when they were in the majority to try to publicize Democratic obstruction of judges.

A few thoughts: while the majority leader could force the minority to hold the floor, in practice, the burden would fall much more on the majority than the minority. The reason is that any time during the filibuster, the minority could call a quorum (i.e. say that a quorum is not present).

The majority would need to have 50 members available at all times to make a quorum, otherwise there would be an adjournment. By contrast, the minority just needs to keep a handful of senators nearby at any given moment (the rest can work in shifts -- i.e. 35 Republicans would be free to be in other parts of DC raising $$ etc, with just, say, 5 hanging out on or near the floor at any given time, while Democrats would need 50 senators near the floor at all times or the GOP could force an adjournment with a quorum call).

So waiting it out would mainly just punish the majority and wear it down. Granted, the publicity might be good in the short-term, but my sense is most people would see it mainly as a stunt.

Wawro, perhaps not surprisingly, substantially agreed with his co-author and added a few additional details:

The so-called "silent filibuster" was not established by a rule. That is simply the practice that has emerged as the Senate had tried to address competing demands. To return to the traditional talk-a-thons, the majority leader would have to use his scheduling authority to make the legislation/nomination in question the primary business on the floor and maintain it as the pending business in the face of others' demands for floor time. I do not believe that it is an effective strategy for combating minority obstruction for the majority leader to force the minority to take and hold the floor for extended periods as they had to in senates of yesteryear.

This argument fails to take into consideration some important realities of political development that explain why the Senate no longer operates in this way. The bottom line is that the majority does not want to expend the effort to exhaust the minority, and indeed, in all likelihood would be unable to do so. In today's Senate, the agenda is so crowded and senators' individual schedules are so packed that it would take little effort on the part of the minority to bring the Senate to execute successfully a "classic filibuster" to the detriment of the majority and to the country.

The Senate is constitutionally forbidden from conducting business in the absence of a quorum, which requires a majority of the chamber to be present. Maintaining a quorum, which is essential to fighting a classic filibuster, would be exceedingly difficult to do because of the demands that senators currently face outside of the chamber. Senators of today devote much more time to working behind the scenes on activities necessary to produce legislation, returning to their home states to interact with constituents, and raising campaign funds than did their counterparts in the "good old days."

Senators are unwilling to forgo activities that involve fundraising and interaction with constituents in order to break a filibuster because these activities are vital to their reelection interests. Apart from his own expressed preferences for maintaining the existence of the filibuster in the abstract, Harry Reid has not and will not unilaterally force classic filibusters because he is sensitive, as a good majority leader must be, to the reelection needs of his caucus. Senators in the majority simply do not want to be forced to fight a filibuster.

The minority needs only one of its members at any given time to forgo reelection-essential activities for a period in order to hold the floor, whereas the majority would have to find 50 of its members to forgo them in order to maintain a quorum during that time. That is simply too tall of an order to ask of the members of the majority.

No one has a good sense of how the public would react to a traditional filibuster. Public opinion polls, to the extent that they convey a meaningful understanding of the issues, indicate that a majority or at least a plurality like the filibuster and want to keep it a part of the institution. I don't think that the public's ability to watch the execution of a classic filibuster would have much of an impact on its outcome.

Few if any would tune in (see, as an example, the Republican staged classic filibuster on blocked Bush nominees in 2005), whether live or on YouTube. However, the public would respond once it becomes clear that the Senate is not getting anything done and government checks stop arriving or federal parks and offices are shuttered. It is not clear who the public would blame for the disruption -- the minority for obstinate obstruction or the majority for failing to govern.

We are unlikely to see a disruption because of a classic filibuster. I think it is more likely that we may see something like this if the Democrats pursue the nuclear option, however.

So Frank Capra's rose-colored image of the filibuster aside, looks like there's not a lot of love for the old-style gear-grinder.

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