It started with a tweet. Nearly three hours into Kentucky Sen. Rand Paul’s filibuster—a protest of John Brennan’s nomination to run the CIA, at least until the Obama administration answered more questions about drone warfare—Utah Sen. Mike Lee’s press office tweeted that he was coming to the floor. When Lee arrived, he asked a question, and Paul gave him the floor. Photographers and reporters watching C-SPAN cameras lost the picture of Paul and sprinted down marble stairs to the doors of the Senate to catch him leaving.
He wasn’t leaving. When a senator exercises his right to filibuster, he has to stand at his desk. He can’t sit. He can’t relieve his bladder. That’s what makes a real, talking filibuster so difficult and so rare that a reporter who joined the Capitol Hill beat in January 2011 had never seen one. The last extended speech, by Vermont Sen. Bernie Sanders, briefly held up the 2010 lame duck tax-cut compromise. That speech became an insta-book, thanks to The Nation.
As media bait that speech had nothing on the #Randpage. Paul had warned for weeks that he would “use every procedural option at my disposal to delay” Brennan’s confirmation. He arrived in the Senate on Wednesday with a black binder packed with drone-skeptic articles and quoted from the Atlantic, Esquire, National Review, and the Guardian. Within hours, reporters who rarely covered drone policy were live-tweeting Paul quotes. The National Republican Senatorial Committee launched a #StandWithRand fundraiser for senators who “remained committed to upholding the values and the mandates of the Constitution.”
Oregon Sen. Jeff Merkley watched this unfold with deep sympathy and deeper irony. Not two months had passed since the Senate bucked him—and 50 of his peers—and punted on filibuster reform. Most modern filibusters consist of 41 (or more) senators voting “no” on cloture, preventing debate on a nomination or bill. Merkley and a posse of young senators wanted to alter that so that every filibuster meant standing up and “talking through the weekend,” really debating each other.
“If a person’s going to make a stand on a nomination, this is the way to do it—the way Sen. Paul is doing it,” Merkley said. “The American people can watch this and weigh in on whether he’s a hero or a bum. That’s reasonable. That honors the traditions of the Senate.”
Merkley contrasted that with the filibuster that happened right before Paul’s speech, one that got perfunctory media attention. For the third time, Democrats tried to advance the nomination of Caitlin Halligan to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. For the third time she got a majority of “aye” votes but couldn’t break the 60-vote cloture threshold.
“That took no time or energy from any member,” Merkley said. “It had no impact on the American people. It had no accountability. From the time that leadership struck its deal on the filibuster, they talked about the need for comity. And what we’ve seen since then is a 100 percent, all-out effort to paralyze this body. We’ve seen that in 43 Republican senators saying they would support a filibuster of anyone nominated to run the (Consumer Financial Protection Bureau). We saw it in the first-ever filibuster of a defense secretary.”
Paul had joined both of those efforts. His vote against cloture on Chuck Hagel made some libertarians furious, but Paul explained that he was trying to use the delay to coax more drone answers from the White House. The experience left him burned. After winning a 12-day delay, most Republicans went back to their states and frittered time away. They got a few answers from Hagel about whether he’d said cruel things about Israel, shrugged, and moved on.
That led right into Paul’s filibuster of the Brennan nomination. He understood the value of high dudgeon and infinite time to talk. “I will speak until I can no longer speak,” said Paul at the top of his speech. “I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”
What followed, for more than six hours, was a plain-talking series of arguments, precedents, and hypotheticals about an opaque issue: Can the executive branch assassinate American citizens without due process? “The 1947 National Security Act says the CIA doesn’t operate in our country,” Paul said. “Nobody questions if planes are flying towards the Twin Towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled. They don’t get their day in court. But if you are sitting in a cafeteria in Dearborn, Mich., if you happen to be an Arab-American who has a relative in the Middle East and you communicate with them by email and somebody says, ‘Oh, your relative is someone we suspect of being associated with terrorism,’ is that enough to kill you?”
After three hours, as the media perked up, Paul was joined by Lee, then by Texas Sen. Ted Cruz, who said that Paul was “standing here today like a modern Mr. Smith Goes to Washington.” After four hours he was joined by Oregon Sen. Ron Wyden, a Democrat on the Senate Intelligence Committee who’d been able to see some classified drone legal arguments from the administration. Wyden had always planned on speaking; now, he was doing it with an inordinate number of people watching and tweeting. Senators who rarely agreed with Paul got up to help him tease out his arguments. “We ought to take out bad guys or guys who are about to do us harm,” said retiring Georgia Sen. Saxby Chambliss. “I think that’s been your position all along, that with due process, we ought to let that happen.”
It looked like a debate that altered the day’s media coverage. It didn’t look like another drive-by filibuster of a judicial nominee. In an interview with Roll Call—conducted before the Paul speech—Democratic whip Sen. Dick Durbin tried to explain how badly that second sort of filibuster had been broken.
“If this is an indication of where we’re headed,” he said, “we need to revisit the rules again.”