Americans got a free lesson in civics last week when Senator Rand Paul (R-Ky.) unleashed a filibuster on the floor of the Senate. Filibusters happen all the time in the Senate, but most people who don’t follow politics regularly don’t hear about them because they are a quiet, procedural affair. Paul, on the other hand, delivered what is known as a "talking filibuster," holding the floor for almost thirteen hours to delay the vote on the President’s new nominee to head the C.I.A., John Brennan. This was breaking news, and yet many people were left wondering ... what is a filibuster?
A filibuster is a phenomenon in which a senator takes advantage of the Senate’s rules allowing for unlimited debate, and refuses to yield the floor while speaking for an extended period of time. He does not even have to actually speak about the matter at hand. In fact, many filibusters in the past have included a senator reading from literature and cookbooks. Indeed, Paul was not even talking about the qualifications of Mr. Brennan; he was demanding clarification on the President’s drone policy. But because the Senate can consider only one piece of legislation or nomination at a time, and because a senator can technically speak as long as he desires, the result is a legislative bottleneck.
It might surprise some to learn that there is no formal provision for a filibuster to be found in the Constitution (though the Constitution does grant the Senate the right to make its own rules). It has its origins in the arcane rules and traditions of the Senate, among which is the almost sacred principle of "unlimited debate." But the type of filibuster we saw yesterday is rare. It requires stamina, a strong bladder, comfortable shoes, and (hopefully) the strength of one’s convictions.
Instead, what we see more often is a type of procedural roadblock based on the Cloture Rule (Rule XXII). Cloture is the process that brings debate to an eventual end by imposing a time limit of 30 hours on debate. To pass, cloture requires 60 votes, more than the simple 51 vote majority required to actually pass the bill itself. This means that 41 senators can prevent a vote on any bill or nomination that might otherwise pass with a vote of saw 55-45. What’s more, they don’t actually have to be on their feet talking or debating; they merely have to state their intention to filibuster, thus making the process quite painless and anonymous for themselves, which is how they like it. This has become known as the "silent filibuster," and it is a weapon wielded with increasing frequency by the Senate minority.
The net effect this has created is a de-facto 60 vote requirement to for the Senate to do anything of significance. It is exceedingly rare for either party to obtain anywhere close to 60 members in the Senate and it is even rarer for them to keep all them united. Some senators such as Sen. Jeff Merkely (D-Ore.) have called for reform of the rules so that an actual "talking filibuster" would be required to delay a vote, thus forcing senators who wish to block a vote to take a public stand and pay a political price for doing so rather than hide in shadows as they do now. As it is right now, it is almost impossible for the Senate to act as a legislative body and do anything constructive.