The Filibuster: We're Filibusted

September 17, 2009 by johne

[Much thanks to my friend G. We've had many conversations, online & off, over this subject, over the years, and he's been a great source - RS]

"I don't remember the old-timey filibusters well enough to know whether the majority having to hang around is so. And I don't have time right now to look it up. I just remember: how they had to fill everyone's offices and the cloakroom and all with cots, and how cranky everyone got at having to show up in the chamber in bathrobes."

"AND by all means, lets require the filibusterers ACTUALLY TO DO IT."

In the interests of possibly never hearing or reading any more comments like that, I'm putting up this long essay on what it really means to launch and curtail a filibuster.

Filibusters are governed by Rules XIX and XXII of the Senate. All a filibuster is is a form of obstruction where a Senator (or more than one, theoretically, but you don't see that often) attempts to delay or entirely prevent a vote on a proposal by extending a debate on that proposal.
Rule XIX governs floor debate, and allows the Senators to "rise & address the Presiding Officer". That rule is what makes filibusters technically possible. Rule XXII governs the precedence of motions, and it's the rule that handles when debate on an issue can be closed, if at all. Of the two, Rule XXII is more important.

There's a third governing authority: Riddick's Senate Procedure. It's 1,500 pages, and covers 200 years of parliamentary rulings on obscure & arcane issues of Senate procedure.

Originally, Rule XXII required a two-thirds super-majority of Senators present and voting in order to close debate. The Compromise of 1975 changed that number to three-fifths - that's why you see an emphasis on 60 votes as opposed to 67 votes.

That said, any other changes to Rule XXII still require a two-thirds super-majority. This becomes important later, so remember that.

Notice that there's no talking required in the current iteration of the rules. The Senate Majority Leader may require a traditional, "old-timey" filibuster if he so desires, but you won't see that happen. More on that in a second, but let's indulge those who'd like to see an "old-timey" filibuster.

During a filibuster, a Senator can only speak twice on any one issue. That's why you would see Senators tag-teaming. The Senator speaks until they're hoarse, at which point they yield to the next Senator. Anyone involved can deliver a second speech on the issue; after they've finished, they can then make motions or offer amendments on the issue - and then, in turn, take turns speaking on those as well. Depending on how many folks you round up for your filibuster, this can go on for weeks or even months - the record is 75 days, in 1964.

Now, here's why you won't see an "old-timey" filibuster. For simplicity, I'm going to assume Republicans would be filibustering and Democrats wouldn't, because they're in the minority, and the filibuster is, by definition, a minority tactic.

You would think the process would be more costly to those doing the talking. You would be mistaken.

Republicans only need one person in the chamber at any given moment, babbling away. Democrats, on the other hand, have to make sure that a quorum (a majority of all Senators) is on hand, which is a Constitutional requirement for the Senate to conduct business.

If there's no quorum after a Democrat has demanded a quorum call, the Senate must adjourn, giving the Republican debaters a chance to go home, sleep, and generally put things off even more.

That's why, back in the "old-timey" (God, I love that description) days, there were cots in the Senate backrooms, and members of the majority would show up to roll-calls in their bathrobes (not necessarily a sight I would encourage seeing).

Those seeking a quorum, by the way, can demand that the Senate's Sergeant-at-Arms arrest Senators, in order to force them to make quorum. That's actually happened - in 1988, Capitol Police actually physically carried Sen. Bob Packwood into the chamber, at the command of then-Majority Leader Robert Byrd.

So, in short, during an "old-timey" filibuster, you'd need 50 Democrats on hand at any one time for the quorum call. The Republicans, on the other hand, just have to have their one guy on the floor, while the rest of them get their beauty sleep.

And imagine that going on for days...or weeks...or months. Senators don't like standing around with nothing to do. They like seeing their families, and going home, and meeting with constituents, and going to fundraisers, and watching movies or football games, or do whatever else they feel like doing - they're humans, after all!

This means that the pain of filibusters falls totally on the side trying to end the filibuster, not the side holding one. Think about it - that's incredibly perverse.

And it's not going to change anytime soon, if ever, because in order to change Rule XXII, you need 67 votes. Good luck trying to get there anytime soon.

"Make 'em pay a political price, man! Health care is too important of an issue!"

Yeah, ok. As I just said: the pain of filibusters falls on the side trying to stop one, not the side holding one. Yes - I think making 50 Democrats stand around the Senate anterooms, for weeks on end, if necessary, is a higher price than one Republican hanging out in the Senate chamber.

That's the issue. That's why you don't see "old-timey" filibusters anymore - because look at who really pays the price for actually having one.

You're not going to change that unless you change Rule XXII, and you're not going to change Rule XXII unless you get 67 Senators to agree.

Oh - and if you think Republicans would pay a price for filibustering, think again. They would merely get Mike Crapo of Idaho, Mike Enzi and Craig Barasso of Wyoming, Jim Inhofe of Oklahoma, maybe Jim DeMint in South Carolina to actually conduct the filibuster - all hailing from deep red states, all standing ready to rake in millions of dollars in contributions from their base for their "brave, heroic stand in defense of freedom", or some such thing.

And before you slam them, think about it - we would have done the same thing back in 2005, only featuring maybe John Kerry, Chris Dodd, Joe Biden...and our base would've contributed just as readily.

There's no way around it - a filibuster is a kiss of death. It needs to go, but we're too locked in combat to let it go.

Update:I originally posted this at Colorado Pols, where there's been a good back & forth on the subject. I'm adding a comment I made there, plus another one from jmatt12, for clarity here:

If you go for a traditional filibuster, you cannot schedule any other business. The work of the Senate literally grinds to a halt. The only way you can schedule other work is if you stick with the modern filibuster (i.e., no babbling).
That's why the filibuster is such a powerful weapon.

The anti-filibustering side has to be even more determined than the filibustering side. That's why filibustering is such a non-idle threat: because it's a heck of a lot easier to filibuster, troublesome than it is, than to break a filibuster, if you don't clearly have 60 votes on your side.

It can happen. But that's the answer to the constant refrain of "I don't understand: why don't the Democrats just make the Republicans carry out a filibuster?"

Because it's a huge pain in the ass to do it. Are Democrats prepared to have the entire caucus live in the Senate building for a month or two, never leaving, while the Republicans just send in two Senators at a time? Do you think that's something they can afford to do casually?

Either the Democrats rustle up 60 votes, or they can't break a filibuster unless somehow the Republicans screw up. It's just that simple.

That means holding on to 57 Democrats, including the severely sick Robert Byrd, plus Independents Bernie Sanders and Joe Lieberman, and adding at least one Republican vote. Good luck.

Folks who keep saying "but we have 60 votes! I don't understand!" indeed, don't understand.

JMatt12:

The way the quorum call also works is that the majority party has to stay in the chamber while the Minority Party is actually encouraged to have as few as possible in the chamber.  

This allows the minority party to be in the hallways doing press conferences, news shows, and so on that helps the minority define the debate and gain public support.  This is doubly bad, because the filibuster attracts tons of public attention, and the only one able to address the media is the minority party...