Last week, Sen. Rand Paul held the floor of the U.S. Senate, with the help of a couple of other senators, for 13 hours to delay the nomination of John Brennan as the new CIA director. The event was reminiscent of Jefferson Smith's famous movie filibuster in "Mr. Smith Goes to Washington." At the end, Paul remarked that he sorely needed a bathroom break.
Americans watching C-SPAN may have thought the filibuster is back. Actually, it never went away. Indeed, it is a more frequent tactic today than ever before. In 1961, there were eight filibusters. In 2010, there were 70.
But we rarely hear about today's filibusters. That's because they're done quietly. A senator merely threatens a filibuster and legislation is stopped. This kind of filibuster provides anonymity to the senator filibustering. They don't have to go to the floor like Sen. Paul did. They don't even have to be anywhere near the Senate floor to conduct the filibuster. All they have to do is raise an objection and the Senate stops its consideration of that bill. And they can filibuster the motion to consider the bill as well as the bill itself.
This isn't the original intent of the filibuster. It was intended to temporarily slow down legislation to allow opponents a chance to make their case against the bill. Opponents were allocated time to seek to shift the majority's opinion and perhaps obtain a compromise with the majority.
However, it has gone far beyond that use. It has become a weapon for stopping everything that is the least bit controversial, and sometimes legislation that is not even divisive. Even worse, it is used to prevent a vote on a nomination for an executive branch appointment, such as the Secretary of Defense or the CIA director, or a judicial nomination. It is even used to stop nominations that are not really controversial. John Brennan was confirmed by a vote of 63 to 34. Rand Paul and other senators who joined his filibuster weren't really after Brennan. They wanted an administration response on use of drones. Similarly, some of the senators who filibustered the nomination of Chuck Hagel as secretary of defense wanted more information from the White House on the Benghazi, Libya consulate attack. Some filibusters have little to do with the bill or appointment at hand.
Both Senate Democrats and Republicans realize the problem. They agreed recently to revise filibuster rules. Their agreement reduces the amount of time for debate after a cloture vote (a vote to end debate) on certain types of bills from 30 hours to four and even to two hours in the case of lower court nominations.
But that's not enough. It's time for real filibuster reform.
I agree with Sen. Jeff Merkley of Oregon who has called for an end to the ability of a senator to conduct a filibuster from behind the scenes. A senator who wants to filibuster should be forced to come to the floor and conduct the filibuster personally, as Paul did. If there is a minority opposed to legislation, it should use the time of the filibuster to convince other senators and the American public of the validity of their position. Paul did that and received the respect of other senators. He also succeeded in getting the White House to respond. That's the best way for a minority to use the filibuster.
Second, filibusters should be used on bills only. It should not be a tool for blocking a motion to consider a bill, thus allowing no more than one filibuster on a single bill. One filibuster is enough to allow the minority to make its case. And filibusters of nominees should be more difficult to sustain. The Senate should ease the cloture vote requirements on nominees to three-fifths of the senators present and voting instead of three-fifths of all senators. That would require the opposition to be present if they wanted to block a nominee.
It is possible to preserve the rights of the minority and get the people's work done at the same time. The Senate needs to find that balance.
Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU.