Why Don’t U.S. Senators Hold Old-Fashioned Filibusters Anymore?

Answers to your questions about the news.
June 27 2013 1:27 PM

Why Don’t U.S. Senators Hold Old-Fashioned Filibusters Anymore?

Plus: If you can’t stand up, can you still filibuster?

State Sen. Jose Rodriguez (D-El Paso) (R) celebrates with State Sen. Wendy Davis (D-Ft. Worth) (3L) as the Democrats defeat the anti-abortion bill SB5.
State Sen. Jose Rodriguez, D-El Paso, celebrates with state Sen. Wendy Davis, D-Fort Worth, as the Democrats defeat the anti-abortion bill SB5 on June 25, 2013, in Austin, Texas. You just don't see filibusters like Davis' anymore.

Photo by Erich Schlegel/Getty Images

Texas Democrat Wendy Davis thrilled abortion rights supporters on Tuesday night with a 13-hour filibuster, helping to beat back a Republican bill that would have closed most abortion clinics in the state. Huge crowds gathered inside and outside the Texas Senate chamber as Davis resisted the urge to sit, lean, or digress. Why did U.S. senators stop holding talking filibusters?

Because it was too taxing. There was more to an old-school filibuster than talking—the obstructionist senator regularly called for snap votes and demanded roll calls. If successful, these maneuvers permitted breaks from speaking and, crucially, time to go to the bathroom. The majority could break the filibuster only by keeping a quorum in the chamber around the clock, in a strategy known as attrition. In the early 1900s, waiting out a filibuster was merely an inconvenience, since senators didn’t have much else to do. By midcentury, however, legislators managed an enormous federal bureaucracy and constantly flew between Washington and their home districts. Attrition was no longer a viable option. Senate Majority Leader Mike Mansfield began calling for quick cloture votes, which cut off debate, in the early 1960s. Once the cloture vote became a regular part of Senate practice, there was no point in holding a marathon talking filibuster. The obstructionists either had the votes to block the bill or they didn’t, and talking ad nauseam (sometimes literally) made no difference.

The Senate added the cloture vote to its rules in 1917 but only rarely used it. The floor was considered a place for debate, and many senators felt that cutting off discussion was an unfair, anti-deliberative maneuver. Solitary contrarians were allowed to tie up the chamber for hours, days, or weeks, even though those in favor of the bill could easily have killed the debate.

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That all changed in the summer of 1962, when a group of liberal Democratic senators filibustered a bill proposed by President Kennedy that, they claimed, represented a giveaway to AT&T. Senate Majority Leader Mansfield cobbled together a coalition of Republicans and conservative Democrats to invoke cloture and break the filibuster. It was the first successful cloture vote since 1927. While no one remembers that telecommunications bill today, it became crucial in the fight over civil rights. For years a small group of Southern senators had filibustered civil rights legislation successfully because several of their pro-civil rights colleagues took a principled stand against cloture votes. Voting for cloture on the telecommunications bill, however, made the stand against cloture on civil rights seem like a convenient excuse to avoid an up-or-down vote. When the Civil Rights Act came up for debate in 1964, many senators finally relented and favored cloture. The cloture vote thus replaced the attrition strategy, and the talking filibuster is now more of a publicity stunt than a legislative tactic.

The death of the attrition strategy was a sad loss for Senate junkies, because it was so often a source of drama and dirty tricks. In 1908, for example, Sen. Thomas P. Gore of Oklahoma ended his portion of a filibuster, expecting William Stone of Missouri to pick up the baton. But Gore, who had been blind since childhood, failed to recognize that Stone had briefly left the chamber. Sen. Nelson Aldrich, recognizing the confusion—and not too proud to take advantage of a blind man—immediately leaped from his seat to demand a vote.

Bonus Explainer: Texas Senate rules require a filibusterer to stand at her desk without leaning. Does that violate the Americans With Disabilities Act? Probably, if the state refused to accommodate a disabled senator. A state legislator with a disability that prevented her from standing for prolonged periods, or that required regular bathroom access, would have to petition the state government for an accommodation. The state could refuse the proposal only if it would fundamentally alter the way the legislature conducted business.

If the state decided to contest an accommodation request, it would likely argue that stamina is fundamental to the filibuster. Holding up legislative business is supposed to be taxing, and many able-bodied filibusterers have given up due to fatigue or the need to go to the bathroom. That might be a difficult argument to make, however, because of the 2001 case PGA Tour v. Martin, which enabled disabled golfer Casey Martin to ride in a cart. The justices determined that the “essence” of golf is “shot-making,” rather than fatigue, and a judge might likewise point out that the essence of filibustering is debate.

Got a question about today’s news? Ask the Explainer.

Explainer thanks Samuel Bagenstos of the University of Michigan Law School, Robert Dinerstein of American University Washington College of Law, and Gregory Koger of the University of Miami, author of Filibustering: A Political History of Obstruction in the House and Senate.

Brian Palmer writes about science, medicine, and the environment for Slate and the Natural Resources Defense Council. Email him at explainerbrian@gmail.com. Follow him on Twitter.

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