The Myth of Mr. Smith: A popular Senate filibuster reform proposal that won’t work

By Robert Mann

It has become popular among opponents of the U.S. Senate filibuster rule to suggest that the surest way to bring Republican obstructionism to heel is to require the filibusterers to stand and talk, Mr. Smith-style.

Congressional Filibuster Record by Party 1992 ...

You may be surprised, however, to learn that the Senate no longer conducts its filibusters in this manner. In fact, Mr. Smith is really Mr. Myth, and always has been.

For every Huey Long or Strom Thurmond who seizes the Senate floor (filibuster derives from a Dutch word for pirating), there have been dozens of team filibusters, staged by a band of senators, each taking his or her turn for a few hours and then yielding to a cohort when exhaustion required or nature called.

filibusters
(Photo credit: myglesias)

Today, however, even those kinds of filibusters are largely a relict. The filibuster is no longer a drama that brings the Senate to a halt, as it did for almost three months during the struggle to pass the Civil Rights Act of 1964.

Now, it’s just a routine technique that senators use on controversial (and even non-controversial) bills to force supporters to generate 60 votes for passage — not the simple majority that common sense and our understanding of democracy require.

It is, in short, a subversion of democracy and it probably violates the Constitution (see this link for an explanation). Despite its occasional utility in slowing down ill-considered legislation, the filibuster has far outlived its usefulness. It should be banished, or at least reformed in a substantial way.

One such reform suggested by well-meaning filibuster critics is a proposal to mandate a return to the old-fashioned “talking” filibuster. In other words, these advocates say, If you’re going to prevent the Senate from voting — or debating — legislation, you should be required to stand on the Senate floor and talk. And if you’re not willing to talk, then the Senate should move to debate or a vote.

Filibuster
Filibuster (Photo credit: Tobias Higbie)

That sounds perfectly sensible and it probably would help cut down on the number of lazy, silent filibusters that keep many bills from passage. But if the object is to use a talking filibuster rule to break the back of a real filibuster on a controversial bill, it probably won’t work.

In fact, a talking filibuster rule would likely impose much greater hardship on the majority of senators who wish to end debate.

That’s because of provision of Senate Rule 19 that says “no Senator shall speak more than twice upon any one question in debate on the same legislative day.” And a legislative day, especially during a filibuster, could last for a week or more. That’s because a legislative day ends only when the Senate adjourns. That means that to break a filibuster and exhaust the filibusterers, the majority must not allow the Senate to adjourn so that the filibustering senator or senators will eventually lose the right to continue speaking.

And here’s why a talking filibuster rule would exhaust the majority: During an old-fashioned filibuster, the majority must keep a majority of senators on hand around the clock to defeat the inevitable quorum calls and motions to adjourn.

So, a well-organized platoon of three or four filibusterers can tie up the Senate for days or weeks with a tag-team debate (one talks for three or four hours, and is then relieved by another for the same period, and on and on). Meanwhile, the majority will exhaust itself in a matter of days because many of those adjournment calls will come at the uncivilized hour of 3 a.m.

If you doubt me, take a few minutes to read here an excerpt from my book The Walls of Jericho: Lyndon Johnson, Hubert Humphrey, Richard Russell and the Struggle for Civil Rights, in which I describe how the Southern opponents of the 1960 civil rights bill used this very tactic to great affect. The bill eventually passed, but the debate nearly killed some of the older senators.

There are many good ideas for reforming the filibuster. The best would be to abolish it. But that won’t happen. Other ideas include: reducing the number of votes required to impose cloture; prohibit filibusters on motions to proceed to consideration of a bill; and, elimination of secret holds on nominations.

But there’s one idea that is an absolute non-starter — the “talking” filibuster.

There’s really only one thing a talking filibuster requirement might kill — the majority.

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