The One Thing That Texas Does REALLY Well

Texas Senator Wendy Davis’ monumental filibuster last week quickly made her an overnight Democrat sensation and champion against the growing male-dominated march towards decreased reproductive choices for women. And it did so because Davis stood (she didn’t sit, she didn’t lean). And she talked. For hours.

As most everyone with access to the internet knows by now, Texas filibuster rules are extraordinarily tough. Davis’ filibuster against the legislative disaster that was SB 5 required her to stand for 11 hours without sitting or leaning, eating or drinking, pausing, going off-topic, or going to the restroom. This is a far cry from the practice as it exists in the U.S. Senate, which has become nothing more than a shallow obstructionist tool that Senators can invoke over the phone or via email, from the chair in their office or the table at a luncheon.

The original filibuster, as it used to exist in the Senate, was dictated by the rule of “attrition.” The majority could only break debate only by keeping a quorum in the chamber around the clock. It was inconvenient and a little annoying, but this was before planes or trains or Citizens United, so they more or less had the time to sit and wait it out.

“In the early 1900s,” Slate reports, “waiting out a filibuster was merely an inconvenience, since senators didn’t have much else to do. By mid-century, however, legislators managed an enormous federal bureaucracy and constantly flew between Washington and their home districts. Attrition was no longer a viable option.”

Enter cloture. A procedural maneuver introduced in 1917 and seldom used, cloture replaced attrition as a means by which a supermajority could cut off a running filibuster, without the time-consuming process that attrition was. But even then things were different — it was considered poor-form to cut off a running debate by a colleague. The Senate floor was a place of discussion, where ideas were exchanged. If a Senator wanted to stand for a dozen hours and speak, it was considered rude to cut him off.

This remained until the 1960s, when Senate Majority Leader Mike Mansfield began using the tool more as a method of legislation than an extraordinary means of maintaining order. After gathering Republicans and conservative Democrats together, he successfully initiated cloture of a 1962 Kennedy-backed bill which the more liberal members of the Senate considered to be overly generous to AT&T. Cloture was then invoked again during debate over the Civil Rights Act in 1964. The Century Foundation reports that there were 58 motions for cloture (a reasonable measure of the number of filibusters or filibuster attempts) between 1917-1970. That became 19 per year between 1971-1992, and then 43 per year between 1993-2012. Or about one filibuster per day that the senate is in session.

The end result has been legislatively crippling. Once it became acceptable to cut off a filibuster with cloture, the threat of filibustering (effectively requiring a supermajority for the bill in question to proceed) became more effective, and a lot less exhausting, than an actually filibuster. It’s obstructionist, and without actual floor debate, does absolutely noting to advance the discussion around controversial topics. 

Of the exploding number of filibusters and filibuster threats, there have been a slim few that have actually been executed on the floor — notably Sen. Bernie Sanders (I-Vermont) filibustering a tax bill, and Sen. Rand Paul (R-Kentucky) filibustering the confirmation of John Brennan as CIA director

Diana Kasdan, senior counsel at the Brennan Center and co-author of two reports regarding filibuster abuse, writes that “Under the current rules, a few senators can basically threaten to filibuster and then the burden is on the majority to gather a supermajority vote.” She notes that Sen. Paul’s filibuster “drew mass public attention and really elevated the debate on the substance of the issue.”

And as the Post has reported, the practice has effectively turned the Senate into a supermajority chamber. “The problem with the filibuster isn’t that senators don’t have to stand and talk, or that they can filibuster the motion to debate as well as the vote itself. It’s that the Senate has become, with no discussion or debate, and effective 60-vote institution.”

The chronic and crippling problem has finally garnered supporters in both parties to begin discussing a change to the rules. Sen. Harry Reid has begun suggesting revisions, which have been supported by the White House.

“We can’t go on like this any more,” Reid said. “I don’t want to get rid of the filibuster, but I have to tell you, I want to change the rules and make the filibuster meaningful.”