Blue in the Face: The Art of the Filibuster

July 26, 2013

What do Texas Senator Wendy Davis, former South Carolina U.S. Senator Strom Thurmond (D-S.C.), and actor Jimmy Stewart have in common? They have become famous for their notable filibusters.  Davis made headlines for her 11-hour filibuster in June 2013 filibuster to block a state bill that would ban abortions after 20 weeks of pregnancy and tightened regulations of abortion clinics. Thurmond holds the record for the longest filibuster in U.S. History at 24 hours and 18 minutes to stall a vote for the Civil Rights Act of 1957. And of course Jimmy Stewart made filibustering famous in his role of Senator Jefferson Smith in the film Mr. Smith Goes to Washington.

Many of us have seen news and pop culture images of filibusters but don’t really have a sense as to how it works. We basically know it entails a politician talking for hours upon hours (upon hours) about a bill, but what are the procedures and the politics behind filibustering? And what does it mean when Senate Majority Leader Harry Reid may go “nuclear,” or assert the nuclear option, that is. To understand the function of the filibuster and why politicians have a love-hate relationship with it, we should turn to the recent filibustering controversy around nominees to the National Labor Relations Board (NLRB), a board that mediates disputes between unions and its workers.

The Basics of Filibustering

Because all bills must allow for debate (and by that I mean virtually unlimited debate), Senators will use this tool to stall a vote on a bill that is before the Senate.   This occurs in two ways.  The first is the more dramatic where a Senators or even a single Senator can talk for as long as possible provided they don’t sit down, eat, drink, go to the bathroom, or lean on anything.  Texas Senator Davis put Mizuno’s Wave Rider running shoes on the map as she stood tirelessly.  The second is the more common practice called the “invisible” filibuster where 41 Senators declare their intention to filibuster but don’t actually stand for hours on end.

But can Senators just talk forever? No. The debate can end if the Senate invokes cloture, a device where 60 Senators vote to end debate and vote on the bill.

Typically, filibustering involves thwarting the passage of partisan legislation but in recent years has been used to delay the confirmation of the President’s judicial and cabinet nominations. The number of attempted filibusters has more than doubled since 1994 but mildly tapered off since. Meanwhile, the number of motions and votes for cloture has steadily increased. In 2009, the minority Republicans made 139 motions for cloture, and in the 2011-2012 Congressional session 115 motions were made.

Filibustering as a Political Strategy

Last week, confirmations to appoint Nancy Schiffer, Associate General Counsel at the AFL-CIO, and Kent Hirozawa, Chief Counsel to the NLRB chairman, to the NLRB, revolved around a filibuster. It was a Republican-Democrat deal around the filibuster rules that allowed the NLRB and the Consumer Financial Protection Bureau confirmation votes to go forward. The Presiding Officer of the Senate Senator Harry Reid (D-Nev.) threatened to exert “nuclear option,” where he would rule that a simple majority vote can end the debate and simply vote on the appointments.  This would have been easy because there are 54 Democrats serving in the Senate.

As part of the deal, Republicans demanded that President Obama replace his previous NLRB nominees— Richard Griffin and Sharon Block – who were recess appointments.  As of Wednesday afternoon, Schiffer’s confirmation was heading to the Senate for a vote.

Do We Like or Hate the Filibuster?

Depends. On one hand, the filibuster process subverts the majority vote. Citizens vote for their senators to be their representatives, and a filibuster only encourages backdoor dealing and negotiations. On the other hand, the filibuster ensures that members of the majority and minority parties consider all issues. Without it, the argument goes, the majority will have no incentive to come to terms over legislation or nominees without regard to the opposing party’s opinion on the matter.

My opinion? Filibustering is predictably unpredictable, and that’s what makes politics politics as usual.