Why the talking filibuster won't work

The talking filibuster worked for Jimmy Stewart, but it probably won't work for Democrats.

Absent some miracle, Democrats won't soon be able to get rid of the filibuster that effectively imposes a 60-vote supermajority requirement in the Senate to pass legislation. Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) still won't support their party's efforts to eliminate the blocking tactic from the chamber's rulebook. But there is still a chance to tweak those rules — and in recent days, the "talking filibuster" appears to have emerged as a favorite possibility for reform.

"I don't think that you have to eliminate the filibuster, you have to do it what it used to be when I first got to the Senate back in the old days," President Biden said this week. "You had to stand up and command the floor, you had to keep talking."

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As Biden suggests, what is now being referred to as the "talking filibuster" was once just the plain-old filibuster. If senators wanted to delay or block legislation that might otherwise draw a majority of their colleagues' votes, they would get up, start talking, and hold the floor for hours, days or even weeks at a time — the popular perception of the Senate as embodied in Stewart's Mr. Smith Goes to Washington. These days, all a senator really has to do to block a bill is announce that they're filibustering a bill. There is almost no effort or cinematic drama involved. That, in turn, makes it nearly impossible for a governing party to get much of anything done. (There are a few exceptions.) Restoring the talking filibuster, the thinking goes, would at least make the minority party — in this case, Republicans — have to work a little bit to block the majority's desires. Nobody can talk forever, right?

It's a nice idea. But it probably won't work. Democrats might be able to get more legislation through the Senate, but on some big things — voting rights, immigration — they might well find Republicans as intractable as ever.

To understand why, it is good to examine the history of the filibuster back when it was the "talking" filibuster. Adam Jentleson, the former deputy chief of staff to one-time Senate Majority Leader Harry Reid, does an excellent job in his new book, Kill Switch, which examines how the filibuster has brought the upper chamber of Congress grinding to a virtual halt.

It's true that filibusters were less common during the days when senators had to keep talking, Jentleson notes. And often, even those filibusters failed. There was a strong sense in the Senate that the majority should generally prevail.

There was an exception to that rule, however: civil rights legislation. Southern Democrats held fast and firm against any bill to outlaw lynching or poll taxes that prevented Black people from voting. "In the 87 years between the end of Reconstruction and 1964, the only bills that were stopped by filibusters were civil rights bills," Jentleson writes. "On the rare occasion a non-civil rights bill ran into a filibuster, it eventually passed."

Civil rights bills were eventually passed, but only after decades of fruitless efforts. Even then, opponents made passage difficult. Sen. Strom Thurmond, then a Democrat from South Carolina — eventually he became a Republican — held the floor for a full 24 hours by himself in a last-ditch attempt to block the Civil Rights Act of 1957. Southern Democrats filibustered the 1964 Civil Rights Act for 60 working days.

Those examples suggest that even with a talking filibuster in place, a determined minority party can do plenty to block legislation it doesn't like.

Rather than being a rare occurrence, then, a modern talking filibuster might become commonplace. There was more of an ideological mix among the parties during the era of rare filibusters — liberal Republicans and conservative Democrats added variety and spice to both parties, which provided lots of bipartisan opportunities to get things done. That sensibility is all but absent from today's homogenized, polarized parties, giving them ample reason to try to block the other's agenda with any tool at hand.

Even if that means talking and talking and talking.

It could be that a talking filibuster might be too taxing for parties to undertake in all but the most extreme circumstances — the average age of a senator in the 117th Congress is 64, after all. But it seems just as likely that minority parties will use any tool they can to throw obstacles in the path of a governing party's agenda. Just look at the Democratic-controlled House, where no filibuster exists, but where conservative Republicans are still trying to slow down legislation with the few tactics available. (Democrats would almost certainly be doing the same thing if the situation was reversed.)

The only real way to solve the problem of the filibuster, then, is to eliminate it entirely. Thanks to Manchin and Sinema, that won't happen anytime soon. So we might as well demand a talking filibuster. If some senators are going to make it impossible to get big things done, they ought to at least put in the work.