Senate procedure

Some footnotes to the Rand Paul filibuster

Mar 9 '13

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.