Do the filibuster like a Texan
Senate Democrats should reform the procedure to make it rare and less likely to be abused.
In Washington these days, most references to the word “filibuster” are shrouded in apocalyptic melodrama.
The loudest Democrats say keeping it would ensure that urgent parts of their agenda — voting rights protections, for example — die a whimpering death in the U.S. Senate. The loudest Republicans — we're looking at you, Senate Minority Leader Mitch McConnell — say getting rid of it would usher in a veritable end of days in the upper chamber, where civility and bipartisan compromise hinge on the once-obscure procedure's ability to bring senators together.
“Let me say this very clearly for all 99 of my colleagues,” McConnell said in a Senate speech in March as he warned against any Democratic plots to undermine the filibuster. “Nobody serving in this chamber can even begin — can even begin to imagine — what a completely scorched earth Senate would look like.”
There's no need for all this doom and gloom. There's a simple solution if senators are just willing to look outside the box — outside Washington, actually. About 1,500 miles south.
Don't kill the filibuster. Just do it like a Texan.
Yes, Texas, that land of hardscrabble terrain where everything from pickup trucks to H-E-B's double-zipper freezer bags declare themselves “Texas tough,” has one tough filibuster that isn't for the weak of heart, nor the weak-bladdered. It's not easily corrupted by the cynically intentioned, either, because it requires state senators to do what is no longer required in Washington: actually filibuster.
Yes, actually stand and blather on for hours on end, without food, without water, without bathroom breaks, without even leaning on one's desk, to do hard battle against menacing legislation whose prevention is deemed worthy of such sacrifice.
Any old political grandstander or shrewd student of parliamentary procedure can threaten a filibuster in the U.S. Senate merely by announcing an intention to do so. Far from the dramatic old-school filibuster featured in the movie “Mr. Smith Goes to Washington,” the pathetic version practiced today is aptly described by Sen. Dick Durbin, D-Ill. as “Mr. Smith Phones it In.”
In Texas, it takes a pure soul — and a supportive pair of insoles — to do what then-Sen. Wendy Davis, D-Fort Worth, did in 2013. As Democrats faced off with a Republican majority determined to pass new and unconstitutional abortion restrictions, Davis put on her trusty pink sneakers and went to work, holding the floor for 13 hours in a climactic filibuster that was watched and tweeted around the world.
The fact that Texas' filibuster is so tough, so grueling, so uncompromising is the reason it's so rare — as it should be, only to be used by those willing to take desperate measures in truly desperate times.
In Washington, it's a routine crutch to stymie the other party's agenda, making it all but impossible to move any piece of legislation without broad bipartisan support. Something's got to change, though not radically.
U.S. Senate Democrats have the votes to rewrite the Senate rules, but they should reform, rather than remove, the filibuster. They can do so by requiring senators who wish to delay a bill to do what Davis and other Texans throughout the years have had to do: work for it.
All a senator wanting to slow the legislative skids need do is threaten to talk a bill to death. Senate Majority Leader Chuck Schumer and other Senate Democrats should change that.
With the Senate split 50-50 and the House margin almost as slim, progressives in President Joe Biden's party are finding it impossible to pass the most ambitious parts of his agenda. Because it touches on the federal budget, his Build Back Better bill is immune to filibuster. Democrats, though, still haven't found even the 50 votes they need, along with Vice President Kamala Harris', to send it to Biden's desk.
That's not a flaw in the system. It just means progressive Democrats need to win more elections. But we can only imagine how frustrating it must be to see another, equally important part of Biden's agenda stalled too, even though it does have the votes to pass.
In November, 49 Republicans used the mere threat of a filibuster to keep the John Lewis Voting Rights Advancement Act from even getting a vote. In doing so, they took advantage of a 1975 change in Senate rules governing the filibuster. Though the change also made it easier to overcome a filibuster — a vote to end debate, known as a cloture vote, would need only 60 votes to succeed instead of 67 — it also made it ridiculously easy to mount the filibuster in the first place, giving senators the power to stop bills with just a threat. A change that was designed to keep the Senate from bogging down every time a member wanted to delay a bill has made stopping a bill so easy that nearly all legislation needs 60 votes to pass these days.
Schumer and the Democrats want to further defang the filibuster, and some have argued for carving out new exceptions to allow some kinds of legislation — such as bills targeting voting rights — be immune to filibusters. Others have suggested lowering the threshold for a cloture vote once more, from 60 to, say, 55.
The better alternative is to do what Texas does.
As Davis found out, in Texas it takes a real filibuster to keep debate going indefinitely if senators hope to run out the clock on legislation. And unlike in Washington, when a Texas senator takes to the floor to talk and talk and talk, they must keep talking on a subject related to the bill in question. So there's no reading of passages of “Green Eggs and Ham,” or as Louisiana's cagey U.S. Sen. Huey Long did in an epic, 13.5-hour filibuster in 1935, sharing his recipe for fried oysters.
There's something else Davis learned, too. Even when they work — and her 2013 filibuster did work, with the help of a rowdy gallery that halted action on the floor until the clock ran out — they don't often have permanent results. Gov. Rick Perry ordered a special session almost immediately and Republicans had all the time they needed to pass their bills, including abortion restrictions.
But then, the filibuster was never designed to give the minority power permanent veto power. It was one of many tools the Framers envisioned to balance the power of a majority in a democracy with protection for those in the minority. That's why it takes super-majority votes to ratify a treaty, to convict an impeached president or send constitutional amendments to the states.
As Biden's first anniversary nears, Democrats have every reason to be frustrated. As it is now used in Congress, the filibuster has become a tool of convenience, and a routine block on any legislation that doesn't enjoy a degree of bipartisan support that has become seemingly impossible in today's climate. That's warped its power to derail legislation out of all proportion. It's supposed to let senators slow down legislation, and in the most extreme cases, derail it temporarily.
That's a useful, if limited, tool for any party in the minority — a status Democrats will share once more sooner or later. They'd be wise to recall John Prine's words: “That's the way that the world goes 'round.
You're up one day, the next you're down.”
Used sparingly, the filibuster can force a deeper debate on changes to American law and culture, can encourage both parties to look for compromise and lead to lasting legislation with better staying power. It can be and has been misused. But removing or eviscerating the filibuster would be a mistake.
Simply restore it to its original grueling glory.
If you're going to filibuster in Texas, you've got to have some skin in the game. Same should go for Washington.