I can’t imagine standing up at a podium for 13 hours, particularly on a national stage like the Senate floor. In such cases, one might think of “Mr. Smith Goes to Washington.” I’m curious to know what was going through Sen. Rand Paul’s (R–Ky.) mind as he conducted an actual talking filibuster for not one, but 13 hours, during which he questioned whether or not the president has the power to kill a U.S. citizen on U.S. soil. It wasn’t enough to break Sen. Strom Thurmond’s record of more than 24 hours, but it was impressive nonetheless.
It was refreshing to hear his reasoning behind the filibuster. In an op-ed in The Washington Post earlier this week, he said he “wanted to sound an alarm bell from coast to coast. I wanted everybody to know that our Constitution is precious and that no American should be killed by a drone without first being charged with a crime.” It appears, for once, that a senator was trying to push an issue that he really cares about. Today, the filibuster has rarely been used in this manner, as it has been used solely as a tool for obstructing the political process. The Senate must reform the filibuster, since it blocks the passage of meaningful legislation in a timely manner.
Before World War I, the use of the filibuster was quite rare. Today, filibusters have been used much more regularly. Until 1971, the number of cloture motions — the vote to end a filibuster — that were filed remained below 10. However, between 1971 and 1972, that number increased to 24. From 2009 to 2010, 137 cloture motions were filed. Throughout this period, both Democrats and Republicans have invoked the filibuster, increasing its use during both the Bush and Obama administrations.
Since the filibuster can only be ended by a supermajority vote, the procedure allows minorities to stall legislation without even having to speak. This has made it easier for the lowest ranking members of the Senate to hold up a bill even if it has majority support. As Sen. Jeff Merkley (D–Ore.) has said in a resolution, the silent filibuster has become “an instrument of partisan politics.”
In recent years, the filibuster has been used solely as a roadblock instead of as a tool to raise important questions about legislation or nominations. The destructive nature of the filibuster has been furthered mainly by the creation of the dual-track system. This system allows the majority leader, with unanimous consent or approval of the minority leader, to set aside the filibustered legislation and move on to another issue. There are no consequences for senators, so they can continue to use it as an obstacle without any concerns.
In terms of solutions, Senate Majority Leader Harry Reid has been working to pass filibuster reform with Minority Leader Mitch McConnell. Senators Tom Udall (D–N.M.), Jeff Merkley (D–Ore.) and Tom Harkin (I–Iowa) have also been working on another plan. However, neither of these proposals will be adequate.
The Senate, first of all, needs to provide the parties with incentives to not filibuster. To do this, they should replace the silent filibuster with the talking filibuster and eliminate the dual-track system. Invoking the filibuster should have consequences to the senator initiating the process.
In addition, there are two other ideas that have received less attention but could each have a dramatic positive impact. A cap on the number of filibusters that can be used by each party during a session of Congress would provide discipline to the process, ensuring that only key issues are blocked. Eliminating the supermajority vote to end a filibuster would also be productive solution. Democratic Sen. Al Franken, for example, has suggested that the minority should be forced to get 40 votes to continue a filibuster.
Until the Senate passes a solution, the filibuster will continue to act as a stopgap for vital legislation. What once was intended to give a voice to minorities has become a major tool for policy gridlock. According to Ezra Klein of The Washington Post, Paul’s filibuster was an example of a “rare and unusual effort to … draw attention to a senator’s very real concerns on a very serious issue.” Hopefully, that can become more of a reality in the future.
Paul Sherman can be reached at pausherm@umich.edu.