Texan State Senator Wendy Davis was so determined to stop the passage of a bill that would have ended access to safe abortions in Texas Tuesday, that she set out to complete a 13-hour filibuster, without assistance or interruption. This was a real filibuster, not the pale shadow of the one currently practiced in the United States Senate. It was an extraordinary measure, reflected in the physical hurdles which Davis was forced to confront.
Under state senate rules, Davis had to speak continuously and remain upright on the senate floor without pausing for bathroom or meal breaks for more than half a day. Had she paused, exited the room, or even leaned against a pillar at any point during the filibuster, it would have come to a premature end and the Texas Senate would have been able to vote on its 20-week abortion ban.
Compare that to the United States Senate, whose members can “filibuster” without even getting out of their chairs. All they have to do is ensure that the other side doesn’t have the 60 votes required to bring a bill to cloture and a straight up-or-down majority vote.
“Under the current rules, a few senators can basically threaten to filibuster and then the burden is on the majority to gather a supermajority vote,” said Brennan Center senior counsel Diana Kasdan, co-author of two reports on “filibuster abuse.” She said that these threats of intent to filibuster are “often done very informally, [by] an email or a call-in.”
Because a filibuster threat is so easy to make, their use has skyrocketed since the early 1970s. Senate majority leader Harry Reid, who unveiled a lukewarm reform to Senate filibuster rules in January, tweeted that Davis was “engaged in the kind of filibuster I can support.”
The rare exceptions are those filibusters during which U.S. senators voluntarily do what Davis did, and spend hours speaking on the Senate floor. There have only been a couple of high-profile filibusters of that kind in recent years: An eight-and-a-half hour tax bill filibuster by Vermont’s Independent Sen. Bernie Sanders in December of 2010 where he railed against skyrocketing income inequality; and a March filibuster of CIA director John Brennan’s confirmation by Republican Sen. Rand Paul of Kentucky, who spent more than twelve hours criticizing President Obama’s drone warfare programs.
Rand Paul’s filibuster “drew mass public attention and really elevated the debate on the substance of the issue,” said Kasdan. She argued that such filibusters are fundamentally more democratic than the type more frequently practiced in the current U.S. senate, because they allow the public to hear what concerns would drive the minority to take such measures.
“Right now in the Senate we don’t know why a measure isn’t being voted on or why there’s a filibuster, and we know it’s often for the purposes of obstruction,” she said. “No one’s raising a particular concern about the legislation.”
Davis, on the other hand, was forced to spend hours upon hours raising concerns. In fact, state senate rules forbid her from straying off-topic during her floor speech. The filibuster came to a premature end at the eleven hour mark when the senate ruled she had wandered away from the topic of the anti-abortion law, though she was still successful in preventing a vote before the official end of the legislative session.
To be sure, her day-long effort, which was cheered on by hundreds of supporters at the State capitol may have just brought on a temporary reprieve for the bill. Texas Rep. Gov. Rick Perry can still call a special session to vote on the bill.