Pouring (a Tiny Bit of) Cold Water on Rand Paul's Filibuster

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The Kentucky senator's filibuster might not even be the most important one that happened yesterday.

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Will Senate Majority Leader Harry Reid take up filibuster reform once again? (Reuters)

Did Rand Paul's filibuster work? And what is its historical significance? Here's a couple quick thoughts about his 13-hour stand on the Senate floor yesterday.

First, did it work? It depends how you define it. In a general sense, it was clearly successful on two levels. Paul was able to bring an enormous amount of attention to an issue that has otherwise been a little out of the mainstream (although if you're a regular reader of The Atlantic's Conor Friedersdorf, as the senator clearly is, you'd be aware). Even more importantly, he seems to have elicited a promise from the White House that President Obama does not believe he can kill non-combatant American citizens on American soil without due process:

Attorney General Eric Holder affirmed that in a very short letter to Rand.

That's huge. Paul forced a White House that has been extremely -- and perhaps unwisely -- cagey about its drone policy to put down a flag.

From a very narrow angle, the point of a filibuster is for the minority position to prevent cloture and prevent a vote from going forward on an issue that would otherwise win. And Paul's filibuster didn't do that -- the Senate will likely hold a vote on John Brennan's nomination for CIA director this afternoon, and he'll win confirmation. Of course, Paul knew he wasn't going to stop the vote, and he said so himself. 

But this tells us something important about filibusters and the filibuster-reform effort that petered out with some minor adjustments in January

Reformers have two main complaints about the institution of the filibuster as it exists now: It subjugates the will of the majority to an obstructionist minority; and, it perilously slows the business of the Senate. The reforms enacted in January heavily skewed toward solving the second problem, by shortening debate in some cases, without really touching the first.

Most filibusters today aren't talking filibusters like Paul's; instead, the minority says it won't let the majority reach the 60 votes needed to close debate, and that's that. Some reformers want to force the minority to use only talking filibusters like Paul's. Here's a dirty secret about talking filibusters that they don't mention much: They almost always fail. 

Paul's "failed," insofar as it won't stop cloture. Vermont Senator Bernie Sanders' eight-and-a-half hour filibuster of a tax deal in December 2010 failed, though it did make for a handsome book. Oregon Senator Wayne Morse's 1953 filibuster of a bill letting Texas sell coastal waters, which set a record for longest filibuster ever at 22 hours and 26 minutes, failed. Strom Thurmond's filibuster of the Civil Rights Act shattered Morse's record at 24 hours and 18 minutes (Thurmond avoided nature's call by dehydrating in a steam room before talking, and kept a bucket in a cloakroom so he could relieve himself while keeping a foot on the Senate floor), but it also failed. Robert Byrd's 1964 filibuster of another civil-rights bill (14 hours, 13 minutes) failed. And so on -- you get the idea. That said, most of the new-style, non-talking filibusters end up failing eventually too, although Majority Leader Harry Reid's success rate at breaking them has tended to hover just above 50 percent. Still, you can see why the talking filibuster is an attractive alternative to filibuster haters -- it's more onerous, and it's likely to fail.

Which brings us to the next point. Paul's stand is important for civil liberties and the War on Terror. From a Senate history standpoint, though, it may not even be the most important filibuster from yesterday.

Before Paul took the floor, Republicans blocked cloture on the nomination of Caitlin Halligan to the D.C. Circuit Court. That court has four open seats, but not a single Obama appointee, because of Republican obstruction. Russell Wheeler explained here last week why the long confirmation delays are dangerous, and why the brief against Halligan is so flimsy. While the White House's strategy thus far has often seemed to be just throwing up its hands in despair, there are signs that it intends to be more aggressive about nominations in its second term. 

And Democratic Senate leaders, who pushed through those watered-down reforms, seem angry about the Halligan filibuster. The Senate's No. 2 Democrat, Dick Durbin, said yesterday: "If this is an indication of where we're headed, we need to revisit the rules again. We need to go back to it again. I'm sorry to say it because I was hopeful that a bipartisan approach to dealing with these issues would work." Harry Reid made a slightly more oblique threat. If the Halligan filibuster leads to serious filibuster reform, it could be a pivotal moment in Senate history.

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David A. Graham

David Graham is a senior associate editor at The Atlantic, where he oversees the Politics Channel. He previously reported for Newsweek, The Wall Street Journal, and The National.

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