During an appearance on The Daily Show at the end of January, Doris Kearns Goodwin argued that Democrats should force Republicans to make good on threats to filibuster on health care reform. If you’re a filibustering senator, she said, “You gotta stand on your feet for as long as you do it, you can only have milk or water, you can’t go to the bathroom…so let them try it! Let them try it!”
Unfortunately, Kearns’ faulty explanation of the filibuster is a lot easier to comprehend than what normally takes place. From a myth perpetuated by the film Mr. Smith Goes to Washington, most of us operate under the notion that a filibustering senator must stand on the floor and talk until he or she collapses from exhaustion. That can happen; most famously Senators Strom Thurmond and Robert C. Byrd both filibustered Mr. Smith-style (though with motives less admirable than those of Jimmy Stuart's character) against different Civil Rights bills. Byrd lasted over 14 hours in 1964, on the last day of a nearly two-month stalling effort by numerous senators, and Thurmond went for a record 24 hours, 18 minutes, in 1957. In reality, however, the burden of a filibuster rarely falls on a single persistent legislator. Here’s how it usually works:
Scenario A: You want to filibuster.
Imagine that you’re a senator in the minority party and you are opposed to a measure that’s about to come down the pipeline. Right now, that would probably mean that you’re a Republican opposed to the health care bill; a few years ago, it would have meant that you were a Democrat opposed to the confirmation of George W. Bush’s judicial nominees. To pass most legislation, a 100-member Senate only needs a simple majority of 51. If those votes are lined up, then voting against the measure would be akin to casting your 2008 presidential vote for John McCain if you lived in Hawaii.
So you decide to filibuster, and you have several opportunities to do so. You can use a filibuster not only to block the vote to begin debate, but to block a vote to end debate and take the actual final vote. It is also possible to filibuster individual amendments, which means that the more complicated the measure under consideration, the more threatening the prospect of a filibuster becomes.
When you filibuster, you may stand on the floor and rail against the bill for days on end, recite your favorite brownie recipe, or tell stories about your childhood dog. However, no one can make you give an actual speech. The more likely scenario is that you will speak for a few minutes, if at all, and then use a delaying tactic to shift the burden of the filibuster onto the majority.
Under existing Senate rules, a quorum (usually 51 senators) is always assumed present unless someone asks for a roll call. The filibuster relies on this rule. If you say, “I suggest the absence of a quorum,” even if every seat in the chamber is full, the presiding officer must instruct the clerk to perform a quorum call, that is, to take attendance one senator at a time. If a quorum is established, then the debate continues. You can talk for a few more minutes, or just sit around working a crossword puzzle, and then suggest the absence of a quorum again; you can pass the baton to a like-minded colleague and go home for a nap (part of the reason the hero of Mr. Smith couldn’t yield the floor is that no other Senators had his back); you can even yield the floor to a member of the opposing party without putting your filibuster in jeopardy. Until 60 people are willing to vote for cloture, it could go on like this forever.
If, however, the quorum call discovers fewer than 51 senators, the Senate adjourns and everyone leaves for the day without accomplishing a thing.
Scenario B: You want to stop or break a filibuster.
To stop a filibuster from even taking place, you need to get 60 senators to vote for cloture. Have 60? Awesome. Further debate is now limited to 30 more hours.
Unless you’re dealing with a lone wolf like Jefferson Smith, you’re probably out of luck when it comes to breaking a filibuster. It’s on your party to keep 50 people ready to answer “present” during the quorum call, while the opposition only needs to keep one person on the floor at a time.
As the majority party, Republicans in 2005 and Democrats in 2009 and 2010 have both kicked around options they hoped would thwart their stubborn colleagues across the aisle. One idea is for a majority senator to ask the presiding officer to rule that repeated quorum calls are out of order. However, the issue of whether they are out of order is tricky. Another possibility is for the Senate Majority Leader to exercise his power to have minority senators arrested and brought to chambers to help maintain a quorum. Of course, dragging someone away from a family dinner or a grandson’s piano recital could backfire on you and your party, especially if, as was the case when Robert C. Byrd used this privilege in 1988, a senator resists and becomes injured in the scuffle.
Harry Reid could force a filibuster, but in doing so, he would risk causing new problems for the Democrats, and with 41 senators to share the deceptively light duties of the filibuster, there’s little chance that Republicans would ever break.
