SOLUTIONS: Gimme That Old Time Filibuster

Written by Lewis D. Eigen

Problem

The Republican Senate minority, in order to slow down the many reforms of the Obama Administration avails themselves of their right, under the Senate rules, to filibuster almost all the bills that are brought to the Senate floor.  However, there are so many filibusters that the Senate has almost come to a standstill.

Solution

Senate Majority Leader, Harry Reed, instead of just cajoling the Republicans and complaining, should go back to the very Senate Rules that allow the filibuster and force those who wish to filibuster to actually hold the floor as in the old days.  Fatigue will eventually end the filibuster, and needed legislation can be passed.  Even before, the inconvenience to the other Senators will be very inconvenienced and will be more inclined to vote for cloture and end the filibuster.  This takes 60 votes.

Old Fashioned Filibusters

Jimmy Stewart Enduring His Filibuster

In the classic old Frank Capra movie, Mr. Smith Goes to Washington, our hero, Jimmy Stewart, uses the filibuster to block some nefarious proposed legislation.  He mounts the rostrum and has to “hold the floor.”  That means he has to keep talking—about anything, but he must keep talking.  Once he stops talking or leaves the podium, he cannot hold the floor and the Senate business moves on.  Stewart’s lips become parched after many hours of talking.  His throat becomes parched.  Physical exhaustion limits the filibuster of any particular Senator.  A generally “unmentionable” limit is the Senator’s bladder.  He cannot leave the floor to use the bathroom.  The longest filibuster on record is 22 hours.  Most Senators cannot make 8.

However, there is also a burden on the Senators opposed to the filibuster.  They must be sure that there is a quorum present at all times—at least half the Senate.  If there is an absence of a quorum, the filibusterer may take a rest and use the toilet until a quorum is assembled.  An old fashioned filibuster was a siege.  When one filibustering senator is exhausted, another who holds similar views and is willing to endure the filibuster takes over.  In the old days, the majority might have to exhaust a dozen or more Senators who carry on the filibuster.  The entire process was transparent and open for all to view.

The Modern Filibuster

Today, the filibuster is a shadow of what it used to be and still might be.  The change came about when Senators of both parties decided that the personal convenience of the Senators was to be the major driving factor.  To break a filibuster, the majority has to be either on the floor of the Senate or close by so that the majority whip can be sure that there is ALWAYS a quorum and not let the filibusterer off the hook.  The majority senators have to take turns going to the bathroom, eating, and even sleeping.  In a special room next to the Senate Chamber, there are 100 cots that can be placed in the halls and cloakrooms

Cots Readied for a Senate Filibuster

so that the majority senators can take turns sleeping.  But not any more.  The cots have not been used since the Civil Rights Days.  During the old time filibuster, the minority Senators, with the exception of the Senator who was speaking, would stay away from the floor of the Senate else they would count in the quorum and the majority would have a lesser burden.  But today, a Senator has to raise hundreds of thousands of dollars a day for his or her campaign.  The Senator has public and private speeches to give, constituents to see, funds to raise.  The modern Senator with air travel takes a 3 or 4 day weekend to go back to his home state.  An old fashioned filibuster would really inconvenience ALL the majority senators and the filibustering minority as well.  They just didn’t want to suffer that inconvenient.  So it was agreed and the modern filibuster took form.  A senator tells the Majority Leader that he is filibustering a particular bill.  The leader then removes that bill from the agenda and all the senators go about business as usual except for debating of voting upon that one bill.  They go to lunch, home every evening and to their home state on weekends.  All very civilized and convenient.  Meanwhile the Majority Leader tries to organize 60 votes for cloture.  If he can get them, the filibuster is ended.  If not, the filibuster goes on.  The minority has all the advantage of the old fashioned filibuster with none of the pain, effort, inconvenience and physical travail.  The majority will is thwarted, but those majority senators are also saved from the inconvenience.  Under the modern system majority legislation is blocked by the whim of a single Senator.  Unlike the old fashioned filibuster, where a single Senator could not possibly pull off a prolonged filibuster.  Other supporting senators would each have to endure the physical and mental stress of holding the floor.  With the modern system all the single senator needs is to have his minority colleagues refrain from voting for cloture, a usual courtesy to a party colleague which costs the other senators nothing.

What To Do

A Cartoon For Abolishing the Filibuster

The solution to the present conundrum is to go back to the old procedures.  Force those filibustering senators to pay the price of their filibuster.  It would require the Senator who initiates the filibuster to have the commitment of other Senators to take and hold the floor—to endure for whatever time they can.  There will no longer be a free filibuster that the modern system allows.  England, France, New Zealand and Canada all have the possibility of filibuster, but there are very few filibusters in those legislatures.  The reason is that in those counties, the filibusterer has to actually do the talking and hold the floor of the legislature.  The United States is the only nation where legislators can have the benefits of a filibuster without any of the inconvenience or pain.

The stated argument against going back to the old way is the during the filibuster, the Senate comes to a dead stop.  No other business can be transacted on the floor of the Senate,  Even committee hearings and caucus meetings would be curtailed as the majority senators would all be needed to maintain a quorum.  While this is true, it is only for the period of the filibuster which, limited by physical endurance might take as much as a week or more, 24 hours a day, around the clock.  Then the business of the Senate goes on.  In the present situation, as Majority Leader Reed has observed, the Senate is frozen from acting upon any significant legislation because there is almost always at least one minority senator who will declare a filibuster.  The Senate is frozen on major things anyway, and all that can be done are administrative matters and those matters where virtually all Senators agree—like having a proclamation for Mother’s Day or expressing condolences for an untimely demise.

There are some who argue that with television covering the Senate, the spectacle of senators reading from the telephone book to keep talking and hold the floor with all the other senators doing nothing would further erode what modest remaining confidence the American public has in the Congress.  However, with public approval of both parties of Congress approaching single digits, this could not hurt much.  On the contrary, an old fashioned filibuster would be the major media event of the week.  At least citizens would see their Senators fighting for their principles and legislation instead of their campaign donations.  It would be very good for the senators for their constituents to see them inconvenienced and without the luxurious perks of office.

Most important, it would bring a balance back to the Senate.  The filibuster is a very important part of our democratic system provided that it is not totally controlling.  If a senator can get enough support from enough colleagues who are willing to undergo the hardships of the filibuster process, the group may last for enough time for the public to weigh in and persuade the majority to change its mind.  But if there is not eventual public support, the majority that is sufficiently committed to their principles and legislation, will break the filibuster and the legislation will pass.  However, if there is only a few senators who will support the filibuster to the degree of taking a turn at holding the floor, then the filibuster will be broken quickly and the Senate can get on with its business, important and trivial.  No longer would one or two senators be able to, like the famous Luddites, stop the wheels of progress.

Click here for historical facts about filibusters.