Senate Democrats are desperately seeking a way to help move their top legislative priorities beyond the Senate’s filibuster rule, which allows a minority of senators to block most bills by refusing to end debate on them. Lately, some Democrats think they have spotted a promising solution: They imagine that if they bring back the classic “talking” or “Jimmy Stewart–style” filibuster, they’ll get around the roadblock. But bringing back talking filibusters isn’t the answer some Democrats hope it is.
Momentum is gathering for this more cautious approach to filibuster reform—it’s even gotten support from President Joe Biden. Democrats favoring it think that what is needed is to make filibusters work the way they did in the good old days, when filibustering senators really had to filibuster—they really had to stand up there talking for the hours and hours it took to keep a bill from getting to a vote.
According to this theory, there are two reasons filibusters have metastasized from an occasional problem into a constant catastrophe. First, in earlier times, senators shared a social understanding that filibusters should be reserved for matters of critical importance, whereas today the Senate minority routinely filibusters everything it doesn’t like. Second, in earlier times, filibustering senators had to work hard to filibuster, whereas today they have it too easy. And while everyone agrees that not much can be done about the first point in this hyperpartisan era, some people think a lot could be done by attacking the second.
Starting in the 1970s, Senate rules created a “dual-tracking system” under which filibusters didn’t have to involve constantly debating a bill on the Senate floor. Such debate ate up too much floor time, so bills that were being filibustered were instead shunted off to a separate track. This had the advantage of allowing the Senate to work on something else while the majority tried to win enough votes to end the filibuster, but it also reduced the cost of filibustering, thereby making it more common. If filibustering senators didn’t actually have to hold the floor and debate (which in addition to being physically taxing left them less time to do other things, including raising money), then they’d be more likely to filibuster, leading to the never-ending filibuster jam the Senate is in now.
So some Democrats think that requiring filibustering senators to hold the floor again, just like Jimmy Stewart in Mr. Smith Goes to Washington, will make filibustering more costly again, and will mean there will be less of it. But advocates of the talking filibuster are overlooking two critical problems.
The first is the very problem that led to the creation of the dual-tracking system in the first place: Talking filibusters eat up too much floor time. Floor time is a precious resource in the Senate. The majority leader never has enough floor time for all the things senators want scheduled as it is. If the majority tried to break a filibuster by insisting that the minority hold the floor and debate a bill, that debate could stretch out endlessly and use floor time the majority needs for other matters. Indeed, these days, the minority might be thrilled to have the opportunity to drain away lots of the majority’s floor time by debating a single bill.
The other problem is that there is no way for the majority to impose the cost of filibustering on the minority party only. Those favoring the “talking filibuster” idea have a mental image of filibustering minority-party senators being made to stay up all night debating. Keep the minority on the floor until 4 a.m. every night and it’ll have to get tired and give up, some seem to believe.
But it wouldn’t just be the members of the minority party that had to stay up all night. The majority senators would have to be there too. A filibustering minority senator, made to talk into the wee hours, could demand a quorum call. Which means that even though the minority only has to have at least one senator present at all times to hold the floor, the majority has to have enough senators present to make a quorum. With only 50 Democratic senators, that means all of them. So if Majority Leader Chuck Schumer wanted to keep the Senate running all night to try to break a filibuster, he’d have to arrange for all 50 Democratic senators to be available to show up at any time all night.
Bringing back the talking filibuster may sound like a good idea, but there are reasons neither the Democratic nor Republican majority leader has tried it. It’s not because they haven’t thought about it, and it’s not because they’re too wimpy to make the Senate stay up all night if that’s what would break a filibuster. The problem is that, under the Senate’s current rules, all-night talking filibusters would just end up imposing more costs on the majority senators than the minority senators. If the Democrats want to steer around the filibuster, they’re going to have to embrace actual change to the rules. There are good reasons to think hard before abolishing the filibuster altogether, but it would at least work. Bringing back talking filibusters would not.