Some footnotes to the Rand Paul filibuster

In a week in which civility broke out all over Washington (from the dining room of the Jefferson Hotel to the floor of the U.S. Senate), Ezra Klein offers some additional, persuasive thoughts about the Rand Paul filibuster.  His comments are important:  Ezra highlights what was so unique about Rand Paul’s half-day filibuster, and he makes a good case for why we should value such demonstrations of conviction and voice in the contemporary Senate.

When Senate institutionalists wax rhapsodic about the upper chamber, they talk about the filibuster’s cherished role in slowing down the majority and permitting passionate minorities to be heard. That is a valuable endeavor!

I completely agree, which is why I was glued to C-Span2 for much of the day and night and why my webpage features this painting of Henry Clay speaking passionately in defense of his Compromise of 1850.  Granted, the Henry Clay-Rand Paul comparison probably starts and ends with Kentucky.  But Paul’s filibuster certainly rekindled notions about the golden age of Senate debate (the Jane Fonda reference withstanding)—when “regular order” meant extended debate and amendment (and eventually a vote) on the Senate floor. After all, as Greg Koger nicely put it this week, “It was a genuine display of intensity on a national policy issue… Filibustering allows for these displays of intensity in a way that roll call votes cannot.”

So is caution still warranted in dwelling on the upside of Paul’s filibuster?  In addition to Koger’s caveats, a few additional footnotes before we put the Rand Paul filibuster to bed.

First, I would wager that the history of the Senate filibuster is not so golden.  To be sure, it’s tough empirically to separate the passionate let-me-be-heard filibusters from the passionate I-will-block-you or hold-your-agenda-hostage filibusters.  But there’s ample evidence that the golden age of Senate deliberation and debate might have been limited to the  antebellum period.  As Steve Smith and I argued in Politics or Principle?, already by the 1850s Henry Clay and other Senate leaders had advocated debate limits to rein in their colleagues; such limits, they argued, would vastly improve the Senate’s legislative capacity.  This sounds familiar!  To be sure, we should applaud the value and importance of filibusters like Rand Paul’s even in light of the past history of the filibuster. But I think it’s important to keep in mind the reality of that history.

Second, it might be difficult to design a set of procedural reforms that encourage “intensity” filibusters but provide the means of reining in other types of filibusters.  The challenge remains to find the right balance between the protection of extended debate and the promise of eventual Senate action.  Reformers themselves (and political scientists)  disagree about whether and where to draw that line.  Of course, senators at times have written laws that immunize particular policy areas (the budget, trade pacts, war powers act debates, and so on) from filibusters.  Of course, as the fizzling of the nuclear option this winter suggests, even if a majority of the Senate were to agree on how to balance debate and action, they might still disagree on how to achieve it.

Finally, one might ask whether the contemporary Senate can handle many more of the Rand Paul type filibusters.  What’s the majority’s tolerance for giving over a day’s debate to other passionate senators?  Or more accurately, what’s the majority leader’s tolerance for such debates?

And with those unanswered questions, I’m going back to designing Rand Paul a pair of filibuster-proof shoes.

9 Responses to Some footnotes to the Rand Paul filibuster

  1. Brett Champion March 9, 2013 at 1:52 pm #

    It’s not surprising that as time went on Senators would find the idea of extended debate troublesome to the legislative process. When the US Senate first opened for business on March 4, 1789, there were a total of 20 Senators (New York, North Carolina, and Rhode Island didn’t send their Senators until later in the 1st Congress). By 1850, that number had risen to 48. Giving 48 people an extended amount of time to debate an issue is a recipe for gridlock, let alone the now 100 people who call themselves United States Senator (especially so considering the high regard that Senators often have for their own powers of rhetoric).

    If the Senate is going to continue to allow a dedicated minority to hold up business on certain issues, the cloture rule is probably the best way to go about it. The cloture rule permits the minority to obstruct without putting a complete halt to Senate business. If 41 to 49 Senators were forced to do what Paul did over every issue that comes before the Senate that they wish to halt or alter in some fashion, then either of two things would happen. One, the Senate would just become a smaller, less representative version of the House in which majorities get what they want when they want it, which, to me, would be a net negative for American governance. Or two, the Senate would cease to function as a legislative body, which would be even worse.

    The “talking” filibuster should be used sparingly and only by limited numbers of Senators at a time when a majority is trying to ram something important through and the leadership of the minority is either incapable of or uninterested in holding up the process. Ironically this will probably occur on issues that otherwise have relatively strong cross-party support.

  2. Bub March 9, 2013 at 7:40 pm #

    I find it strange that Rand Paul’s filibuster is being so widely worshiped. When Bernie Sanders did the same thing back in 2010 with the Bush Tax Cuts most people did virtually nothing except ignore it. But apparently when a ‘libertarian” repeats the actions of a socialist it gets far more fanfare and starry-eyed admiration.

    • Deidre Kellogg March 9, 2013 at 9:43 pm #

      I wholeheartedly agree with you!
      Bernie Sanders did what he felt was right, and then did not try to capitalize on it afterwards by talking about a possible run for the presidency, as Rand Paul did.
      People have such interesting, selective memories.

    • gee blee March 9, 2013 at 10:29 pm #

      That’s because Sanders was advocating confiscation of people’s labor, while Paul was advocating for people’s right to due process.

      • Leslie March 10, 2013 at 9:08 am #

        You mean confiscation of excess gains on OTHER people’s labor. This is the Bush tax cut not the Obama tax cut.

        • Pamela March 10, 2013 at 10:40 pm #

          Those OTHER people who agreed to the terms of payment for their labor when they took the job offered them by those whose gains YOU seem happy to steal/confiscate. What gives you the right to decide someone’s legally attained gains are excessive? Thief.

  3. sillama March 9, 2013 at 8:03 pm #

    Bub, I think Rand Paul is being promoted by the plutocrats as their next Presidential candidate. Bernie didn’t get the press because the corporate powers can’t control him. It’s a sad fact that sons of idealists tend to be cynical opportunists.

  4. G-man March 9, 2013 at 9:22 pm #

    I’d have been much more impressed had Joe Teaparty done this with a repub in the White House. After all, the GOP candidate for POTUS had no problem with drones, so it wasn’t even a campaign issue. I’m betting if Mitt had won (that made me throw up in my mouth a little), drones would be flying over DNC headquarters.

  5. lynnette March 10, 2013 at 3:04 am #

    people have such self-serving memories.

    the difference is the corporate owned media likes Rand Paul not Bernie.

    Income Inequality Goes Viral

    March 6, 2013

    by John Light

    Over the weekend, a YouTube video breaking down income inequality in America went viral. As a reader of BillMoyers.com, you may have been aware that the disparity in wealth between the richest one percent of Americans and the bottom 80 percent has grown exponentially over the last thirty years — but the video, posted by user politizane and relying on data from a popular Mother Jones post, focuses on the difference between the ideal disparity that Americans would like to see and the reality.

    The gap is a lot larger than many informed Americans realize.

    Watch the video.

    http://billmoyers.com/2013/03/06/income-inequality-goes-viral/