No standing, no marathon speeches, no catheter bags: How filibustering got way too easy
By Jada Yuan,
You used to have to earn it. Stand for hours arguing your point. Maybe in heels! Resort to reading recipes aloud when you’d run out of things to say. Force everyone else to sleep in cots outside the Senate chambers.
The filibuster that Republicans used in June to kill the For the People Act — the Democrats’ voting rights bill that would have rolled back voter-suppression measures recently passed in many states — wasn’t nearly that dramatic. There was no grinding it out, no feats of stamina. Instead, Republicans simply had to say they were going to filibuster, and the bill was dead.
“People are going downtown, sitting in the spa somewhere and phoning in the filibuster to keep us from voting!” an outraged Rep. James E. Clyburn (D-S.C.) said recently on MSNBC.
We are in the era of the no-effort filibuster. The slacktivist filibuster. The participation-trophy filibuster. Now Democrats are talking of ending the filibuster — their only hope to get this and much of President Biden’s agenda passed.
The filibuster once was an outlaw move in the guise of a parliamentary procedure. The term comes from Dutch and Spanish words for “pirate,” and minority senators who employed the filibuster were essentially swashbucklers, seizing time and attention from the majority.
Used to delay or block a bill from coming to a vote (it was known as “talking a bill to death”), it smacked of moral melodrama and physical fortitude: You wanna pass this bill? You’ve gotta go through me! That kind of thing. If you didn’t collapse on the floor at the end, you were doing it wrong.
Columbia Pictures/Kobal
Shutterstock
Claude Rains, left, and Jimmy Stewart in Frank Capra’s 1939 classic film “Mr. Smith Goes to Washington,” in which Stewart’s character, an inexperienced junior senator, uses the filibuster to help prove he’s innocent of corruption.
“A part of me wondered whether, after two or three hours, my bladder was going to force me to pack it in,” said Sen. Chris Murphy (D-Conn.), who embarked on a 15-hour filibuster in 2016 to bring about a vote on gun-control measures after the mass shooting at the Pulse nightclub in Orlando.
[What’s wrong with politicizing a tragedy? For Sen. Chris Murphy, nothing at all.]
“I was fitted for a catheter at about 6 o’clock that morning,” said Wendy Davis, the former Democratic Texas state senator who spent 13 hours in 2013 literally standing up to stop the passage of a bill aimed at severely curtailing abortion access. “I really didn’t feel like I could hydrate because a catheter bag is only so big,” she said.
Testing the capacity of the catheter bag — now that’s earning your filibuster.
You had to hold the Senate floor for hours, risking your bladder and your sanity. The theatrics were compelling, even if a filibuster was ultimately ineffective. (The salmon-colored sneakers Davis wore also sold out nationwide. The bill she opposed later passed, after a delay.)
Today, the talking filibuster still exists but it’s rarely used. It’s been replaced by the boring, procedural, but nonetheless lethal-to-legislation “silent” filibuster, in which senators in the minority party threaten to filibuster and the majority leader often decides it isn’t worth the hassle of bringing the bill to the floor. A tool that was intended to extend debate now cuts it off entirely.
“The minority doesn’t have to do a thing” nowadays, said Norm Ornstein, a congressional scholar at the American Enterprise Institute. “One member can just raise a little finger and say, ‘I’m going to filibuster.’ So it’s a complete minority veto and what flows from that is that they filibuster everything.”
While there’s support for eliminating it, the president remains a traditionalist: Don’t eliminate the filibuster, Biden said in March, but restore it to “what it used to be when I first got to the Senate back in the old days.” That is, he reiterated at his first news conference later that month, a filibuster where “you had to stand there and talk and talk and talk and talk until you collapse.”
The talking filibuster has been a useful reference for screenwriters looking for a way to crank up the narrative tension in scripts that are heavy on civics.
[The 34 best political movies ever made]
Picture Jimmy Stewart, falsely accused of corruption, shouting, “No, sir, I will not yield!” in 1939’s “Mr. Smith Goes to Washington,” or a 2001 episode of “The West Wing” in which an elderly senator filibusters a White House bill for what turns out to be a noble reason — fighting for autism research on behalf of his autistic grandson. Davis’s filibuster in Texas was echoed in a 2015 episode of “Scandal,” in which a disgraced first lady turned senator filibusters for Planned Parenthood and becomes a hero.
In the nonfiction version of American politics, the talking filibuster has been for much of its history associated with White people who don’t want Black people to have power — specifically, Southern Democrats trying, and often succeeding, to stop civil rights legislation. Segregationist Sen. Strom Thurmond (S.C.), then still a Democrat, holds the record for the longest solo filibuster because he dehydrated himself with steam baths and fortified himself with steak to spend more than 24 hours railing against the Civil Rights Act of 1957, after which the bill promptly passed.
Clyburn, the current House majority whip, was a high school senior when Thurmond set his record “to argue against extending equal rights to me and my community,” he told The Washington Post. “As much as I disagreed with his position, I admired his commitment.”
Eric Gay
AP
Texas state Sen. Wendy Davis, a Democrat from Fort Worth, wore tennis shoes instead of heels as she undertook a one-woman filibuster in 2013 to stall antiabortion legislation in 2013.
Charles Dharapak
AP
Sen. Ted Cruz (R-Tex.) is seen on a television in the Senate Press Gallery as he filibusters in opposition to President Barack Obama’s health-care law in 2013.
So, how did it get to this? Gradually, at first, with some minor-seeming rule changes nearly five decades ago, in 1975, when the Senate changed the threshold for “invoking cloture” (stopping debate to advance a bill to a vote) from two-thirds of voting members to three-fifths of all Senate members.
This meant the majority had to get 60 votes every time they wanted to stop debate on a bill, rather than the simple majority of 51 needed to actually pass it. In effect, it created a 60-vote minimum to pass all controversial legislation.
Also in the ’70s, Sen. Robert Byrd (D-W.Va.), who was majority whip (and had by then disavowed his membership in the Ku Klux Klan), introduced “dual tracking,” which allowed the majority leader to set aside one slow-moving piece of legislation to move onto the next. Before that, the Senate considered one bill, one nomination at a time and a filibuster blocked everything the Senate was doing, as Ezra Klein explained in a 2009 column for The Post. It was the equivalent of stopping the government, which meant the incentives to keep it from happening — as well as the pressure on the person filibustering to make it good — were sky high.
“Once Byrd changed the rules to allow dual tracking, filibusters became almost pain-free,” Klein wrote. And because you didn’t have to actually filibuster, it also provided cover. Senators opposing popular legislation no longer had to go to the floor to explain why.
Even so, it took a while for the old ways to change, said Ornstein of the American Enterprise Institute. Before, a lawmaker filibustered for a deeply held reason. It was a rarity, and the institution’s integrity came first. “You don’t bollix up the entire Senate for partisan purposes,” he said. “[Senate Minority Leader] Mitch McConnell blew that up by using the filibuster as a weapon of mass obstruction.”
[Biden is a ‘Senate guy’ but it just doesn’t work like it used to]
It has created a system in which one party can use the filibuster to torpedo the other party’s entire agenda, such as how the Republicans stymied President Barack Obama, who called it a “Jim Crow relic,” in his 2020 eulogy for Rep. John Lewis (D-Ga.). Or how the Democrats road-blocked President Donald Trump. Or how the Republicans killed the For the People Act. According to the Brookings Institution, “More cloture motions have been filed in the last two decades than in the 80 years prior.”
If the silent filibuster is a “Kill Switch,” as Adam Jentleson, former deputy chief of staff to Sen. Harry M. Reid (D-Nev.), titled his 2021 book about the filibuster, then the talking filibuster is a war of attrition. But is it better? What is lost when senators no longer have to stand up for what they believe?
Pete Marovich
Getty Images
Sen. Richard Blumenthal (D-Conn.), right, listens as Sen. Chris Murphy (D-Conn.) speaks to reporters after waging an almost 15-hour filibuster on the Senate floor to force a vote on gun control in June 2016.
At its best, the talking filibuster was an impassioned show, used to sway others. At its worst, it was silly and self-hazing, having little to do with good government or even personal conviction. The filibuster’s historical highlight reel includes an overnight Republican filibuster in 1988 of a Democratic-sponsored bill to curb spending in senatorial campaigns. It ended with the Capitol Police arresting several members and carrying one, Sen. Bob Packwood (R-Ore.), feet-first into the chamber after a quorum vote boycott.
“I rather enjoyed it,” Packwood said.
Sen. Orrin G. Hatch (R-Utah) called it a “Kafkaesque episode” that lent the Senate “the aura of a banana republic.”
“Here we have the greatest debating body in the world, the oldest democracy in the world, and it’s got this feature where senators engage in what often seems like foolish behavior,” said Gregory J. Wawro, a political scientist at Columbia University who co-wrote a book on filibusters. “I understand that there are romantic ideas about the Senate, but if you want to go back [to a talking filibuster], you have to accept all the ugly things that happened with those kinds of filibusters, like violence between senators, or the worst racist rhetoric you can imagine.”
Where silent filibusters now land with a thud, talking filibusters once had their own entertaining, even transcendent, way of making history.
Sen. Mike Gravel (D-Alaska), who died June 26, once filibustered against the renewal of the Vietnam War draft by reading the Pentagon Papers into the record, at a time when their publication had been halted by the Supreme Court. Gravel broke down in tears, saying he was “physically incapable of continuing any longer.”
Sen. Ted Cruz (R-Tex.) read “Green Eggs and Ham” during his 21-hour filibuster against the Affordable Care Act in 2013. Sen. Alfonse M. D’Amato (R-N.Y.) sang Frank Sinatra’s “South of the Border (Down Mexico Way)” in his 15-hour filibuster of a revenue bill he thought would force a New York-based typewriter factory to move its operations to Mexico in 1992.
The talking filibuster still offers the allure of a hard-fought victory.
“I basically made a decision to do it that morning,” said Murphy of his 2016 gun-control filibuster.
His tactic was to hold the floor during debate over a bill regarding funding for the Justice Department, thus forcing McConnell (R-Ky.), then the Senate majority leader, to bring to a vote Murphy’s gun-control measures if he wanted to move forward on the appropriations bill. Before starting, he had enlisted Sens. Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.) to stay in the chamber with him and ask lengthy questions that would give him a break from speaking.
Murphy had his aides scrambling to get material for him to read. He had no idea how long he’d be up there, and he said he’d never given a speech longer than 30 minutes. He worried about his bladder, but also his back; he’d ruptured two disks in his 20s.
By the end of the 15 hours, amid tons of TV coverage, 40 different senators had come to the chamber to assist, and McConnell had said he was open to scheduling a vote. Murphy’s discomfort disappeared.
“It’s hard to describe how much adrenaline is flowing through your body when something like that seems to be working,” he said.
Murphy is in the keep-the-filibuster-but-make-them-earn-it camp. If a talking filibuster were required, he said, there would be a whole lot fewer of them.
Ornstein agreed, if only because senators would start feeling like filibusters were cramping their style.
“Especially if you really intrude on their comfort zone,” he said, “where they have to be around Mondays, and they have to be around Fridays, and they have to be around on the weekends, and they have to be there in the middle of the night, and you’re 87-year-old Chuck Grassley and you’re going to have to sleep on a lumpy cot and get up at 4 in the morning to cast a vote. You’re not going to be real happy about it.”
But, said Wawro, the Columbia political scientist, even if you take away the filibuster, some procedural mastermind will just find another loophole. There are all number of things “an imaginative senator can do to gum up the works of the Senate,” he said. It’s hard to resist the urge to obstruct.
