Filibuster Talk Won’t Work Unless Senators Listen

Oregon Senator Bob Packwood led the news on February 25, 1988.

Democrats in the United States Senate wanted to pass some campaign finance reforms. Republicans were opposed. The Democratic leadership tried to force Republicans to filibuster their bill. Republican minority leader Alan Simpson of Wyoming repeatedly noted the absence of a quorum.

Republicans held 46 seats, enough to stop the Democratic agenda. They also wanted to save themselves the trouble of an all-night talkathon. Denying the body its quorum was the tactic they chose. Republicans met in the cloakroom and dispersed from there. Packwood returned to his office, locked the doors, and watched the proceedings on television.

Democrats realized they’d been had and so they relied on one of the Senate’s earliest rules to remedy the situation. Sen. Robert Byrd, a master parliamentarian, invoked “a call of the house” to reach a quorum.

That authorized the sergeant-at-arms to arrest any recalcitrant senators and bring them to the chamber so that work could resume. When Capitol Police came looking for Packwood, he was given up by his cleaning lady. His office door was forcibly opened (or broken down, depending on the news account) and he was brought into the chamber feet first at 1:17 AM.

The Senate didn’t much care for the image of one of their own being carried in against his will. They probably cared even less for Packwood’s grandstanding about the experience. “I rather enjoyed it,” Packwood told the Associated Press. “I’ve instructed four of my staff to get a sedan chair.”

Ouch.

For the other 99 members of what’s been called the world’s most exclusive club, that comment (and the related photo op) may have struck a bit too close to home. Not only did Republicans succeed in blocking the proposed legislation, but they made Democrats look bad in the process.

If the scene described sounds familiar to you, it may be because it was playfully but accurately portrayed in a melodramatic climax during season two of “House of Cards.” (Season three is being released by Netflix today.)

Now comes Sen. Jeff Merkley, also of Oregon. He and other reformers would like to see the United States Senate require a “talking filibuster” similar to Jimmy Stewart’s depiction in Mr. Smith Goes to Washington.

The United States Senate is famously proud of its traditions. Adherence to its own rules is only slightly less important than fulfilling its obligations prescribed in the Constitution. The filibuster rule dates back to 1806. Its practice began in 1837.

But the rule that (literally) ensnared Packwood is older than that.

The Senate originally dispersed in the summer as farm and harvest duties drew Senators back to their home states. Some couldn’t resist leaving before the summer recess began, leaving leaders without a necessary quorum. Without a quorum, nothing could be done.

In 1798, the Senate adopted a rule allowing less than a quorum to authorize expenses for the sergeant-at-arms to bring absent members back to the chamber. Those senators who had prematurely left town (or hidden in their office) could be chased down and brought back. They would be then obligated to pay whatever expenses the sergeant-at-arms incurred in returning them.

As anyone who watches C-SPAN closely can attest, the Senate floor fills for votes and empties for speeches. But the rule requiring senators to be in attendance is still on the books and can be invoked by any senator at any time.

“You cannot force senators to talk during a filibuster,” according to Bob Dove, who served as Senate parliamentarian from 1966 until 2001 and wrote a book on the topic. The Senator could simply say, “I suggest the absence of a quorum.” That would trigger a roll call. When that finished, the Senator could again notice the absence of a quorum and start the process all over.

Without a quorum, the only options available would be recess, adjournment, or compelling Senators to attend. In other words, the Senate could indeed require a Senator to talk during a filibuster, but not without also requiring 50 other Senators to sit and listen.

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Don Kahle (fridays@dksez.com) writes a column each Friday for The Register-Guard and blogs