Droning on: Thoughts on the Rand Paul “talking filibuster”

Sen. Rand Paul has just completed his nearly thirteen hour filibuster against John Brennan’s nomination to head the CIA.   Breaking off his filibuster (because, he inferred, he had to pee), Rand was heralded for bringing back the “talking filibuster.”  There was much written (and tweeted) about his filibuster, which began with Paul’s dramatic:

“I will speak until I can no longer speak…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.”

I thought I would add a few late-night thoughts in honor of this day spent with C-Span 2 humming in my ear.

First, I think Jon Bernstein’s reaction to the filibuster was right on the mark.  There’s been a lot of enthusiasm for the talking filibuster today, from Ezra Klein’s “If more filibusters went like this, there’d be no reason to demand reform,” to Josh Marshall’s, “This is a good example of why we should have the talking filibuster and just the talking filibuster.”  But Bernstein raises a critical point: “Today’s live filibuster shows again just how easy it is to hold the Senate floor for an extended period.”  The motivation of recent reformers has been to reduce filibustering by raising the costs of obstruction for the minority.   In theory, making the filibuster more burdensome to the minority—while putting their views under the spotlight—should make filibusters more costly and more rare. (Paul did note in coming off the Senate floor tonight that his feet hurt…)  But as Bernstein points out, Paul believes in his cause, and it plays well with his constituencies.  On the physical front, the tag-team of GOP senators rallying to Paul’s cause also lessened the burden on Paul (as would have a pair of filibuster-proof shoes).  That said, today’s filibuster was a little unusual.  The majority seemed unfazed by giving up the day to Paul’s filibuster, perhaps because the rest of Washington was shutdown for a pseudo-snow storm.  Moreover, the Brennan nomination had bipartisan support, with Reid believing there were 60 senators ready to invoke cloture.  In short, today’s episode might not be a great test case for observing the potential consequences of reform.

Second, keep in mind that this was a double-filibuster day.  The nomination of Caitlin Halligan for the DC Court of Appeals was blocked, failing for the second time to secure cloture.  With 41 Republican senators voting to block an up or down confirmation vote on Halligan, an often-noted alternative reform (which would require 41 senators to block cloture instead of 60 senators to invoke it) would have made no difference to the outcome.  And what if the minority had been required to launch a talking filibuster to block Halligan’s nomination?  Reid might have been willing to forfeit the floor time to Paul today.  But Reid would unlikely have wanted to give up another day to Halligan’s opponents.  As Steve Smith has argued, the burden of talking filibusters also falls on the majority, which typically wants to move on to other business.  “Negotiating around the filibuster,” Smith has argued, “would still be common.”  On a day with two successful minority filibusters (at least in consuming floor time and deterring the majority from its agenda), we can see why the majority might be reticent to make senators talk.

Third, let’s not lose sight of the target of Rand’s filibuster: The head of the CIA.  Although the chief spook is not technically in the president’s cabinet, the position certainly falls within the ranks of nominations that have typically been protected from filibusters.  Granted, that norm was trampled with the Hagel filibuster for Secretary of Defense.  But rather than seeing the potential upside of today’s talking filibuster, I can’t help but see the downside:  In an age of intense policy and political differences between the parties, no corner of Senate business is immune to filibusters.

All that said, what’s not to like about a mini demonstration of a real live filibuster?!  Perhaps Paul’s late day Snickers break was cheating.  But it was a good C-Span type of day overall, for filibuster newbies to Franklin Burdette devotees.  Even Dick Durbin well after midnight seemed to be enjoying the fray.  Perhaps there’s a silver lining for talking filibusters after all.

8 Responses to Droning on: Thoughts on the Rand Paul “talking filibuster”

  1. Matt March 7, 2013 at 11:34 am #

    Greg Sargeant is reporting that the GOP only had 40 votes against cloture and the 41st was Harry Reid switching his vote for procedural reasons, so the reform that shifts the burden to the minority by requiring 41 votes to continue debate would have indeed worked

    • Sarah March 7, 2013 at 2:42 pm #

      Ahh. Good catch. Though if the reform were in place, I suspect McConnell might have drummed up (or at least tried to) another senator to vote against cloture to make it 41.

  2. Junaid March 7, 2013 at 4:12 pm #

    I’m sorry, but you can’t write an entire blog post about Rand Paul’s filibuster on the use of drones without actually discussing… the use of drones. There is an OVERWHELMING debate going on in foreign policy and legal circles about this new type of war, about its effectiveness, its repercussions on communities in Yemen & Pakistan and the legality of it. And it’s critical to debate it. Otherwise, we’ll have another Iraq or Afghanistan on our hands.

    • John Sides March 7, 2013 at 4:57 pm #

      Junaid: You can write such a blog post if you’re a scholar of Senate procedure and the filibuster, and not a scholar of national security generally and drone warfare in particular. If you’re interested, various contributors to this blog have addressed drone warfare in multiple posts:


    • LFC March 8, 2013 at 12:14 am #

      @ Junaid:
      His filibuster had precisely nothing to do with the use of drones outside the U.S. (maybe it should have been about that, but it wasn’t). It was focused solely on the (hypothetical) question of drone use in the U.S. When Holder gave Paul the answer he wanted on that, he pronounced himself satisfied.

  3. LFC March 8, 2013 at 12:16 am #

    edit: lethal drone use

  4. T. Greer March 8, 2013 at 2:51 am #

    I strongly disagree with the closing shot on Jon Bernstein’s post.

    “But don’t be fooled into thinking that this is the Senate at its best; the Senate at it’s best is doing real legislating and real oversight, not making speeches. And to the extent that Paul is reinforcing the romantic notion that talking filibusters are some sort of ideal, it’s hurting the prospects for solid, effective Senate reform. Which remains, alas, badly needed.”

    This is silly. As I noted in response over at my place:

    “Yes indeed – I suppose when Daniel Webster stood up and declared “Liberty and Union, now and forever, one and inseparable!” on the Senate floor, addressing not just his Senatorial colleagues, but the entire American people, he was not “at his best” either. That could only happen when Mr. Webster was working in an oversight committee.

    Rand Paul is not Daniel Webster. But the comparison is an important one: it gives us a sense of just how far the goal posts have been moved. There was once a time when Senators and Representatives were expected to plead their case before the American people on the House and Senate floors. Debate and discussion by leading statesmen in public forums was considered an essential part of popular democracy. Through such discussion Congressmen were held accountable and through this forum Congressmen would communicate to their constituents, and at times, to the nation. There is a strong correlation between the decline of popular discourse on the Senate and House floors and the eclipse of the national legislature by the technocrats of a bloated executive branch. “

    What makes Senator Paul’s filibuster worth noting is that it is the first time in a long time any legislator has been able to transforms the floors of congress into a bully pulpit.

  5. Juan Valdez March 9, 2013 at 5:42 pm #

    Yes, indeed. Not since 2010 has such a thing happened.