As dawn rose over the Capitol on a Wednesday in early March 1960, two men remained on the Senate floor—segregationist South Carolina Senator Olin Johnson was reading aloud from the collected works of J. Edgar Hoover while a lightly snoring Senator Prescott Bush, the father and grandfather of future presidents, supposedly stood guard for civil rights forces. As a Washington Post reporter noted archly, “Sleep hung in the air like nerve gas.”
Senate Majority Leader Lyndon Johnson had staged the all-night session in a desperate attempt to break a Southern filibuster against a voting rights bill. His army of Northern Democrats and party-of-Lincoln Republicans were sleeping on Army cots nearby, ready to show up groggily for 3 a.m. quorum calls to prevent the Senate from adjourning. Meanwhile, 18 members of the segregationist Southern Caucus held the floor in four-hour shifts, which was about as long as their legs could take it. As North Carolina Senator Sam Ervin (later the hero of the Watergate hearings) said after ending his stint at the microphone, “My throat is fine, but I could feel it in my knees.”
The round-the-clock talkathon went on for five days—setting the record for the longest continuous session in Senate history—before LBJ conceded bleary-eyed defeat. When it came to civil rights, the unity of the Southern Caucus combined with a since-modified requirement of a two-thirds vote to shut off debate meant that the decades-long drive for equality was delayed until Johnson was president.
The filibuster, a word loosely derived from the name for the seventeenth-century pirates of the Caribbean, emerged as an occasional legislative tactic in the antebellum Senate. Since senators spent most of their days working at their desks on the floor, a filibuster merely required legislators to get to their feet and speak. A talking filibuster did not always thwart legislation—a protracted fight staged by liberals over atomic energy in 1954 ended when the Senate narrowly voted to invoke cloture. But it did give both sides weapons that tested their unity and their endurance. And the strains on everyone in the Senate meant that this potent weapon was used infrequently.
What gives the talking filibuster contemporary relevance is that it may be the only way out for Senate Democrats trapped in a prison with Mitch McConnell as the heartless jailer.
Without a dramatic change in the rules governing the filibuster, Democrats have no chance of passing the ambitious voting rights bill known as the “For the People Act” that has already won approval in the House. The same is true for legislation that would enact gun control and raise the minimum wage.
If it remains business as usual in the Senate, McConnell and his GOP cronies will easily block the liberal legislation by voting in lockstep fashion against cutting off debate. As long as the Republicans have 40 votes against cloture, they don’t have to give lengthy speeches to justify their obstinate resistance or even stay up late enough to prompt a single yawn.
It may be hard for liberal activists to accept the reality that Senate Democrats are simply not going to eliminate the filibuster before the 2022 elections. Joe Manchin—whose Senate seat in overwhelmingly Trumpist West Virginia gives Democrats their majority—has repeatedly expressed his opposition to such a dramatic change in Senate rules. In case anyone missed his point, Manchin recently wrote in The Washington Post, “There is no circumstance in which I will vote to eliminate or weaken the filibuster.”
Manchin is not alone in his resistance. Arizona’s Kyrsten Sinema is equally adamant. And a handful of other Democratic senators quietly share the view that it could be unwise to give up the filibuster when they might need it if the Republicans were to win back the Senate in 2022. As a former Democratic senator told me, “I’ve always believed that you don’t understand the filibuster until you’ve spent two years in the minority.”
Manchin, though, appears to regard a talking filibuster as a tempting option—despite his opposition to lowering the number of votes needed to shut off debate. In mid-March, the West Virginia senator said, with slightly mangled syntax, during an interview on Fox News, “If you want to make it a little bit more painful, make him stand there and talk, I’m willing to look at any way we can.” Joe Biden, who can wax nostalgic about Capitol Hill during the 1970s, said recently, “You have to do what it used to be when I first got to the Senate back in the old days. You had to stand up and command the floor, you had to keep talking.”
In truth, a talking filibuster like the 1960 version is a team event rather than an individual competition. True, a lone figure commanding the Senate floor until he drops from exhaustion like Jimmy Stewart in Mr. Smith Goes to Washington represents the popular image of a talking filibuster. And there have been stunts like that one—most notably South Carolina’s Strom Thurmond railing against a toothless 1957 civil rights bill for more than 24 hours with only a single bathroom break. (Thurmond’s biographers disagree whether his self-control was due to deliberately dehydrating himself in the Senate steam room or whether he used a hidden rubber contraption.) But as Robert Caro writes in Master of the Senate, the third volume of his masterful Lyndon Johnson biography, “That scene from the Senate’s past was a solo performance; none of his fellow southerners would join him, and they were furious at him because they felt he was showing them up for not filibustering themselves.”
How would a talking filibuster work in 2021?
There is much we don’t know, since most of the legislative tacticians who employed it and defended against it in the 1950s and 1960s are no longer with us. The presence of TV cameras in the Senate would certainly change how it is used. Sixty years ago, reporters in the press gallery edited much of the logorrhea of filibusters out of their newspaper stories to make them readable. Sure, there were mocking cartoons and occasional photographs of ostensibly distinguished senators in bathrobes. But without TV pictures, it was hard for most voters to understand the anti-democratic absurdity of a protracted filibuster. There is, for example, no recording of Huey Long’s recital of his favorite pot likker recipe during a 15-hour filibuster in 1935. Imagine if it were broadcast live on C-SPAN. Even in the 1950s, Richard Russell, the mastermind behind the segregationist resistance, warned his Southern colleagues about sticking to the topic in their marathon speeches during a filibuster. Russell rightly feared that such antics would bring ridicule to the segregationist crusade and, in a few cases, he worried that his fellow Southern senators might launch into crude late-night racist rants.
The one certainty about talking filibusters is that they grind everything else on the Senate calendar to a halt. In 1975—in a well-intentioned but ultimately misguided effort—the Senate shifted its rules to allow a two-track system. That way the Senate could shift to other legislative business while the bill that was being filibustered remained in limbo offstage. The result was that the only manifestation of a filibuster was periodic cloture votes. When cloture failed—as it often did because of McConnell’s massive resistance—the Senate simply switched back to the other track.
With a talking filibuster, there would be no other track. And since hearings require unanimous consent to proceed while the Senate is in session, it is unlikely that there would be action in the committee rooms. In prior decades, presidents tried to rush their most vital legislation through the legislative process at the beginning of a Senate session because they knew that they risked losing weeks and even months to a protracted talking filibuster.
Biden, alas, does not have that luxury. As Jim Manley, a top aide to former Senate Majority Leader Harry Reid, said in an interview, “A talking filibuster would require some tinkering by the leadership on how to manage the Senate schedule.” Assuming Biden follows through on his resolve to pass his infrastructure package through a complex congressional mechanism called reconciliation that only requires a majority vote in the Senate, he won’t have much time to muscle voting rights through Congress before the summer recess. Then, sometime in September (depending on how the Treasury Department manages its borrowing), Congress will have to lift the debt ceiling, and at the end of the month, funding for the government will also run out.
This is the disadvantage to Biden’s strategy of letting Senate Democrats slowly reach consensus on how to handle the filibuster.
A voting rights bill is vital to Democratic efforts to hold the Congress in 2022, especially after the legislative efforts in states like Georgia to suppress minority turnout. But even with a talking filibuster—which, it must be stressed, is probably the most ambitious reform that could win unified Democratic support in the Senate—it would be hard to pass the “For the People Act” before some of its key provisions become moot. A prime example: Legislative efforts to eliminate gerrymandering would have little practical value if the 2022 House districts have already been drawn before the bill wins Senate approval.
Former Senator Al Franken and congressional expert Norman Ornstein have proposed an additional tweak to the Senate’s rules that would help defuse the power of the filibuster. In a February op-ed in the Minneapolis Star Tribune, they suggest that any group of senators filibustering a bill should be required to demonstrate that they have 41 votes to keep talking, rather than require the majority to muster 60 votes to invoke cloture. As the authors explain, “The majority leader could call votes any time the Senate was in session, and the minority would have to show up. Including for votes at 3 a.m. or 4 a.m., coming off their lumpy cots off the Senate floor.”
The goal—and this is something that would appeal to Manchin with his airy talk of bipartisanship—is to make a filibuster sufficiently unappealing that legislative compromise becomes the preferable alternative. Yes, that sounds naïve. But as Ross Baker, a political scientist at Rutgers University, pointed out in an interview, “The most important thing for senators is their quality of life. And being forced to spend extended time on the Senate floor is not a productive use of their time.”
The C-SPAN cameras are the biggest X-factor in assessing the strategic merits of a talking filibuster. The first few days of a talking filibuster—especially if you add the drama of an all-night session or two—could attract a sizable audience. And if the Republicans were opposing a voting rights bill, it would be instructive to hear their arguments as fatigue stripped away their masquerade that they are defenders of election integrity.
Let’s be honest—there are no guarantees that McConnell can be defeated as long as it takes 60 votes to shut off Senate debate. But the other options open to the Democrats are bleak in a 50–50 Senate. That is true whether the legislation is to protect voting rights, promote gun safety, or provide a $15-an-hour minimum wage. A talking filibuster may not be a panacea. But at least it would require Republicans to put their mouths where their money is.