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The Senate And Its Finicky Filibuster Relationship


It's WEEKENDS on ALL THINGS CONSIDERED from NPR News. I'm Robert Smith.



SMITH: This is tape of former New York Senator Alfonse D'Amato from 1992 on the floor of the Senate. He was trying to stop a tax bill. Believe it or not, he was trying to save a typewriter factory.


SMITH: Senator D'Amato spoke for 15 hours on the floor of the Senate to keep the bill from passing. We have a name for this technique, when one person talks so much that nothing else can get done. We call it being a jerk. But in the Senate, it's an old tradition, and they call it the filibuster. And I believe that the good gentleman from New York is now trying to filibuster my program. Sir, I demand that you yield the floor.


SMITH: The problem I'm facing right here is the same one they have in the Senate. It's almost impossible to stop someone who wants to filibuster. When we talk about a do-nothing Congress, well, filibuster is one of the reasons. A lot of people are fed up with this.

In fact, a group of relatively new senators came up with a plan to make the filibuster much more difficult, to allow Senators to do what they came to Washington, D.C., to do: legislate.

And this week, the long-awaited reforms were announced. It ended up being a compromise, but one that Senator John McCain has high hopes for.

SENATOR JOHN MCCAIN: I believe that the object and I believe the outcome of this hard-earned compromise would allow us to achieve the legislative goals that all of us seek.

SMITH: It became fairly obvious that the changes to the rules of the Senate did not go as far as the reformers wanted. It did not end the filibuster. In fact, the changes might not make much of a difference at all. Today's cover story: Trying to kill the filibuster.


SMITH: OK. When you heard the word filibuster, it's easy to think of Alfonse D'Amato, talking himself hoarse to help out a factory in his state. The principled filibuster, arguing all night long to protect something you believe in, even newly elected senators had this dreamy idea.

SENATOR JEFF MERKLEY: I pictured filibustering as something that occurred on a rare issue that goes deep in your heart or deep to the interest of your state that you do once or twice in your career.

SMITH: This is Democratic Senator Jeff Merkley from Oregon. He's in his first term. But it didn't take long after he arrived to see that times had changed.

MERKLEY: And suddenly, every vote, every bill was filibustered.

SMITH: And you can go down a list of things that would probably be law today if not for the constant filibustering in the Senate. Whatever you care about, probably filibustered at some point. Take the DREAM Act. That allows children of undocumented immigrants a path to citizenship. That was blocked by a filibuster twice in the Senate, even though it had a majority of votes needed to pass.

OK. That's a Democratic proposal. But it works the other way too. I remember back in 2005, the Republicans wanted to drill for oil in the Arctic National Wildlife Refuge, NWAR. That was stopped by a filibuster from the Democrats.

And the stunning thing for Senator Merkley when he got here was that to do all these filibusters, you don't need to actually walk out on the floor of the U.S. Senate. You don't need to talk all night like Alfonse D'Amato. That doesn't happen anymore. You don't need to talk at all to filibuster. All you do is pick up the phone.

MERKLEY: Any senator can object to a unanimous consent to get to a final vote. That's it. An objection. Call up the floor leader and say if there's unanimous consent, object on my behalf. I'm not going to let us go to final vote. And so everything's objected to, which means that you're wasting enormous amounts of time.

You'd start to see why we aren't getting appropriation bills done, why we don't get nominations done, why - for judges or for executive appointments. It means that we are deeply, deeply dysfunctional and paralyzed.

SMITH: So how did this happen? There's no mention of the filibuster in the Constitution. In most instances, the Senate is supposed to work on majority rule. But way back, 200 years ago, one guy screwed up, made this all possible. That man? He's our villain today. Aaron Burr, the third vice president of the United States and the stone-cold killer of Alexander Hamilton. Sarah Binder teaches political science at George Washington University, and she picks up our story.

SARAH BINDER: Aaron Burr has just shot Alexander Hamilton. He's been indicted, but he gives his farewell speech to the Senate because he's still the vice president. And one of the things he does is he says: You are a great deliberative body, but great legislatures have really nice rule books, and yours is a mess.

And he proceeds to walk through the rules of the Senate, pointing out the ones, which hadn't been used, or there's duplicative. And he singles out a rule called the Previous Question Motion. He singles it out and said: This one - you're not using it really. We don't really know what it means. You should drop it. And they drop it. They clean up the rule book, and that motion's gone.

SMITH: This is how you decided we've had enough. We've all talked. We should really vote.

BINDER: Absolutely. You know, they hadn't used it that way. They hadn't quite figured out how powerful the rule could be. But once you get rid of the Previous Question Motion, that's the only way for a majority to decide to cut off debate and move to a vote. Not because senators thought we need to filibuster, we need extended debate; they didn't know how to use the rule. I think it was, at best, a mistake, right? The unintended consequence was that they created a chamber with no rule to cut off debate.


SMITH: It took decades before anyone realized that this was an amazing new loophole. If one senator can keep the debate going, then every senator functionally has a veto. Any senator can grind down or even stop the process by simply saying: I'm not ready to vote quite yet.

The filibuster, as we know it, was first used in the mid-1800s, mostly as a threat. It was perfected in the civil rights era as senators from the South tried to stop civil rights legislation. Senator Strom Thurmond once talked on the Senate floor for more than 24 hours. He was infamous.

But at least in those days, it didn't happen that often. These days, over the last few years, there have been hundreds of filibusters - big and small - over just about everything, which brings us to the reform efforts and this week's compromise. Senator Jeff Merkley and a number of other recently elected Democratic senators pushed hard late last year - and this month, too - for a plan that would make the filibuster much harder to pull off.

For instance, part of the plan: No more phone call. If you want to filibuster, you've got to do it. You have to take the floor of the Senate, and you need to start talking and keep talking. Now, the Republicans didn't like this. They're in the minority. They want the power of the filibuster.

And the proposal was especially hated by those who had been in the Senate a long time. I talked with Republican Senator Lamar Alexander last month, and he thought these newly elected Democratic senators didn't understand the traditions of the Senate.

SENATOR LAMAR ALEXANDER: It's important to have a Senate that slows things down and arrives at a consensus before we make a big change in American life.

SMITH: It seems too slow.

ALEXANDER: Well, we live in a speeded-up world. But it doesn't seem too slow when a king or a mob come in and do something to you you don't like.

SMITH: But there's no kings. There's no mobs.

ALEXANDER: Well, if you have a sudden infusion of passion into the electorate - whether it's Occupy Wall Street or whether it's the Tea Party or whether it's any group - you don't necessarily want all of that to change American life in 30 days by majority rule.

SMITH: And Senator Alexander says he frequently reminds his Democratic colleagues of this fact. They will be in the minority again someday. And when that day comes, the Democrats may want the easy filibuster back again.

ALEXANDER: And what I've said to them before is, I mean, you might like the idea of a freight train running through the Senate like it runs through the House, but you're not going to like it as well if the freight train is the Tea Party Express when the Republicans are in the majority.

SMITH: And you say I've been there.

ALEXANDER: Well, that's what I say to them.

SMITH: This week, when the Senate announced its new rules, it was clear that the old guard had won the battle. The rules had minor tweaks to the filibuster. It will make it easier for the majority to get a bill to the floor for debate, but it won't make it much easier to get that legislation passed. We ran it by our filibuster expert Sarah Binder.

BINDER: So these reforms tinkered at the edges to speed up the Senate when they've agreed we're ready to vote.

SMITH: Well, bottom line, if legislation used to move through the Senate as quickly as a snail, what are we at now? Are we at a turtle?


BINDER: We're no faster than a turtle in most cases. There's one little rule change that will speed up putting judges onto the federal bench, and that might be a little hop, skip and jump of a little bunny who doesn't - who can't go very far. But by and large, we're in the world of the turtles. We're taking advantage of some - cutting away the underbrush and moving ahead a little quicker.

SMITH: We reached Senator Merkley, the guy who had supported the far more sweeping reforms, by cellphone. He said he was hopeful something good could come of it. His colleague in the reform effort, Senator Tom Udall, also tried to stay positive about the changes.

SENATOR TOM UDALL: I think these rules changes are a hint that we're going to move in a new direction.

SMITH: That's an optimistic way to put it, but some might say you tried to change everything and you lost.


UDALL: Well, my Uncle Mo, this Morris Udall - he was a congressman from - 30 years from Arizona. And he was a great reformer. He used to say reform is not for the short-winded. You don't get everything you want the first time around, sometimes the second time around. I wish we had gone a little bit further, but we didn't have the votes.

SMITH: The Senate will revisit the filibuster rules in another two years, and that's when the votes might change. To peer into the congressional future, we brought in Manu Raju. He's a senior congressional correspondent for POLITICO. He says the fight over the filibuster was sort of a generational split. And the Senate? The Senate is changing.

MANU RAJU: What you're seeing in the Senate as a whole, it is becoming a more junior, younger institution. There are probably about half of the Senate right now has not even served a full term. So you're seeing a big shift in the way that the Senate operates. And so you're going to see a fight over the rules probably in the next Congress, especially if Democrats keep control the Senate and there are more and more folks in the Democratic caucus who have never served in the minority. They're going to be a big push to change it to make the majority be able to move a little quicker.

SMITH: Senators have promised that they will use these next two years to try to get along better, to ease up a little bit on the filibuster. They don't want the American public to get as fed up as Alfonse D'Amato during his filibuster.


SMITH: This is NPR News. Transcript provided by NPR, Copyright NPR.

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