Last Wednesday, Senator Rand Paul from Kentucky led a 13-hour filibuster of the nomination of John Brennan to head the CIA, shining a spotlight not only on the issue he was discussing—the administration’s use of drones—but also on one of the most curious traditions in American government.
The filibuster is one of the most powerful tactics an individual senator can use to influence legislation, bringing work to a halt and creating pressure on the majority to accommodate his or her concerns. These days, it’s usually the mere threat of a filibuster that gets the job done. When the real thing happens, it’s sometimes over an important national issue, sometimes over a more local matter. Ratification of the Treaty of Versailles was filibustered in 1919. The longest one-man filibuster on record was former Senator Strom Thumond’s 24-hour-18-minute filibuster of the Civil Rights Act in 1957. The first televised filibuster, in 1992, was a 15-hour-14-minute marathon by New York Senator Al D’Amato trying to prevent the shutdown of a Smith-Corona typewriter factory in upstate New York.
For all the complexities of Senate procedure, carrying out a filibuster is surprisingly simple. Technically there is no bright line between a filibuster and a really long floor speech. Most questions the Senate considers are called “debatable” questions, and on a debatable question, any of 100 senators, or all of them, can speak about the question for any length of time—as long as, like Senator Paul, he or she observes the Senate’s arcane rules and precedents that have evolved over more than two centuries.
Whatever you think of Senator Paul’s views on the Brennan nomination or the drone issues he discussed during his filibuster, he deserves credit for reviving the tactic of an old-school filibuster and doing it “the right way.” So how do you filibuster the right way?
How to start
Go to the Senate floor, stand at your desk, and when one of your colleagues finishes speaking, ask the presiding officer to recognize you to speak. Start speaking, and don’t stop. If you speak for long enough, at some point people will say, “Hey, that senator is filibustering.”
How to keep the floor
Do not sit down. If you do, you have yielded the floor. The presiding officer will recognize someone else to speak, and your filibuster will be over. You can walk around, but you must stay on the Senate floor, continue speaking, and remain standing.
How to refuel
This is a challenge. You can drink water or milk (the latter added as a precedent in 1966), but you cannot eat on the Senate floor. The exception is hard candy from the drawer of the “Candy Desk” that traditionally belongs to a senator from Pennsylvania, home of large candy manufacturers.
What to talk about
As a procedural matter you can talk about anything you want. In the 1930s, Louisiana Senator Huey Long used to quote the Bible, read the Constitution, and once even described his recipes for fried oysters and potlikker. More recently Vermont Senator Bernie Sanders read letters from his constituents. Senator Rand Paul stayed on topic, speaking about drones and the Obama administration’s refusal to answer his questions about the limits to the president’s authority to use drones against American citizens.
How to take a break
Pick a friendly senator and allow him or her to ask a question—which can then go on for a couple of hours. Like the speech, the content of the “question” itself is procedurally irrelevant. You can stretch and enjoy not speaking—all while remaining on the Senate floor. One problem you will encounter: There is no bathroom on the Senate floor. Several filibusters have ended for this reason. In 1964 Senator Thurmond tried to delay this by taking a steam bath to dehydrate his body, allowing him to continue for over 24 hours.
How it ends
A filibuster ends in one of three ways. If the majority leader can get 60 votes to shut down the filibuster, he can do so, but the process itself takes two to three days. The filibuster can win an accommodation, as Senator Paul did when the attorney general sent a new letter addressing his question. Or the filibustering senator can simply stop speaking, often because of fatigue. Even a filibuster that ends without an accommodation can be judged a success if it raises the public profile of an important policy issue.