Texas Democrat Wendy Davis thrilled abortion rights supporters on Tuesday night with a13-hour filibuster, helping to beat back a Republican bill that would have closed most abortion clinics in the state. Huge crowds gathered inside and outside the Texas Senate chamber as Davis resisted the urge to sit, lean, or digress. Why did U.S. senators stop holding talking filibusters?
Because it was too taxing. There was more to an old-school filibuster than talking—the obstructionist senator regularly called for snap votes and demanded roll calls. If successful, these maneuvers permitted breaks from speaking and, crucially, time to go to the bathroom. The majority could break the filibuster only by keeping a quorum in the chamber around the clock, in a strategy known as attrition. In the early 1900s, waiting out a filibuster was merely an inconvenience, since senators didn’t have much else to do. By midcentury, however, legislators managed an enormous federal bureaucracy and constantly flew between Washington and their home districts. Attrition was no longer a viable option. Senate Majority Leader Mike Mansfield began calling for quick cloture votes, which cut off debate, in the early 1960s. Once the cloture vote became a regular part of Senate practice, there was no point in holding a marathon talking filibuster. The obstructionists either had the votes to block the bill or they didn’t, and talking ad nauseam (sometimes literally) made no difference.
The Senate added the cloture vote to its rules in 1917 but only rarely used it. The floor was considered a place for debate, and many senators felt that cutting off discussion was an unfair, anti-deliberative maneuver. Solitary contrarians were allowed to tie up the chamber for hours, days, or weeks, even though those in favor of the bill could easily have killed the debate.
The death of the attrition strategy was a sad loss for Senate junkies, because it was so often a source of drama and dirty tricks. In 1908, for example, Sen. Thomas P. Gore of Oklahoma ended his portion of a filibuster, expecting William Stone of Missouri to pick up the baton. But Gore, who had been blind since childhood, failed to recognize that Stone had briefly left the chamber. Sen. Nelson Aldrich, recognizing the confusion—and not too proud to take advantage of a blind man—immediately leaped from his seat to demand a vote.
Bonus Explainer: Texas Senate rules require a filibusterer to stand at her desk without leaning. Does that violate the Americans With Disabilities Act? Probably, if the state refused to accommodate a disabled senator. A state legislator with a disability that prevented her from standing for prolonged periods, or that required regular bathroom access, would have to petition the state government for an accommodation. The state could refuse the proposal only if it would fundamentally alter the way the legislature conducted business.
If the state decided to contest an accommodation request, it would likely argue that stamina is fundamental to the filibuster. Holding up legislative business is supposed to be taxing, and many able-bodied filibusterers have given up due to fatigue or the need to go to the bathroom. That might be a difficult argument to make, however, because of the 2001 case PGA Tour v. Martin, which enabled disabled golfer Casey Martin to ride in a cart. The justices determined that the “essence” of golf is “shot-making,” rather than fatigue, and a judge might likewise point out that the essence of filibustering is debate.
Brian Palmer is a writer for Slate.