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March 07, 2013 9:14 AM Droning On: Rand Paul’s “Talking Filibuster”

By Sarah Binder

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, 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: the “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, the 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, the 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.  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 the 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.

[Originally posted at The Monkey Cage]

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Sarah Binder is a professor of political science at George Washington University and a senior fellow at the Brookings Institution.