Defending the Filibuster, Revised and Updated Edition: The Soul of the Senate

12. Bring in the Cots

Bring in the Cots Manycriticsof theSenatemajorityleadershipdecrytheirunwillingness to break the backs of the filibusterers as was done with the “old-fashioned ” filibusters. Such wars of attrition on the Senate floor with senatorsreadingfromthephonebookandsleepingoncotsinthecloakrooms are now rare. The image of Jimmy Stewart as Senator Jefferson Smith comes to mind, heroically holding the Senate floor hour after hour. Demand for Old-Fashioned Filibusters There is a widespread conviction that simply requiring the obstructing minority to talk long enough to drive them to exhaustion would defeat them in the end. In the media and among other commentators the call for requiring those engaged in filibustering to practice “old-fashioned” filibusters is common. Most accept it at face value. In fact, Majority Leader Harry Reid (D-NV) has been criticized for not employing this strategy. Historian Doris Kearns Goodwin, speaking of Republicans filibustering health reform legislation, told Jon Stewart on The Daily Show, “Let them filibuster. You realize how great they’re going to look, these Republicans, trying not to go to the bathroom?”1 twelve ★ ★ ★ Bring in the Cots · 143 The majority has been criticized for allowing “painless” and “gentlemen ” filibusters. Even sophisticated voices in the House of Representatives and the Senate itself have called on the leadership to require the filibusterers to publicly declare and exhaust themselves by talking through the night and for as long as it takes to defeat the filibuster. During the battle for the Obama administration’s stimulus package, House MajorityLeaderStenyHoyer(D-MD)“calledonSenateMajorityLeader HarryReid(D-NV)toforceSenateRepublicanstomountactualfilibusters if they want to stand in the way of bills ‘so that the American people can see who’s undermining action.’”2 Early in 2010, Naftali Bendavid wrote in the Wall Street Journal that “it has been a long time since there was a filibuster worthy of the name, with cots rolled out of storage rooms, bleary-eyed senators speechifying at 3 a.m. and the Capitol held in thrall to round-the-clock debates.”3 HereportedthatsomeSenateDemocratswanttochangemajoritypractices , arguing that “filibusters, holds and other roadblocks shouldn’t be bloodless affairs . . . if Republicans want to hold up action, they should stay on the Senate floor and make their case.”4 Senator Sheldon Whitehouse (D-RI) declared, “It would achieve greater visibility . . . as to why things are jammed up in Washington.”5 And Senator Ben Cardin (DMD )added,“Weare determined,even if itmeans.. .stayingthroughout the night, that we want to demonstrate to the American people that thereisafilibustergoingonandaRepublican,orRepublicans,aretrying to block an up-or-down vote on issues.”6 And when the shoe was on the other foot, when Democrats, in 2003, were filibustering to block the Bush judicial nominees, Kate O’Beirne wrote in the National Review: “A threatened filibuster alone should not allow 41 senators to block the confirmation of federal judges. Rather than surrender preemptively to the need for 60 votes to confirm a judge, Senate majority leader Bill Frist should call the Democrats’ bluff, and bring back the traditional filibuster. Let Kate Michelman, leader of the abortion lobby, man the cots and wipe the brows of weary Democrats forced to talk ’round the clock.”7 She went on to invoke the familiar image from Mr. Smith Goes to Washington: “The notion of the dramaladen , longwinded Senate filibuster is an outdated one arising from 144 · Defending the Filibuster Hollywood movies . . . The ‘modern,’ ‘silent,’ or ‘gentleman’s’ filibuster might more accurately be called the ‘lazy man’s’ filibuster. It has become so trivialized that there is no longer any need to silence an objecting senator . . . [Majority Leader] Bill Frist must be prepared to make the Dems stay there, for as long as it takes. By calling their bluff, Frist will have set a good precedent: that under his management, 51 votes represents a Senate majority.”8 In the same vein, Senator Frank Lautenberg (D-NJ) even introduced the “Mr. Smith Act,” an effort to reform Senate rules by requiring that those who are attempting to block legislation by filibuster actually hold the floor and speak. In his testimony to the Senate Rules Committee in July 2010, Senator Lautenberg recalled: “In the iconic movie, Mr. Smith Goes to Washington, to maintain his filibuster, Mr. Smith stood on his feet on the Senate floor and spoke continuously for 23 hours. Eventually his passion, fortitude and arguments win the day . . . [T]he ‘Mr. Smith Act’—is a modest measure that will bring Mr. Smith back to Washington by bringing the Senate back to its...