After Democratic Sen. Ron Wyden (D-Ore.) gave an assist to Sen. Rand Paul’s (R-Ky.) filibuster, some on the left were eagerly trying to frame the floor speech as not “joining” in a GOP filibuster.
About four hours into Paul’s nearly 13-hour filibuster of the John Brennan nomination, Wyden announced via Twitter he was “heading to the floor to speak on Congressional oversight of executive branch & rules for targeted killings.”
To keep the filibuster going — and to get a bit of a break from marathon talking — Paul needed to hand the mic off to a colleague who would technically pose a question to the senator without yielding the floor.
“The issue of American security and American freedom really doesn’t get enough discussion here in the United States Senate and it’s my view that the senator from Kentucky has made a number of important points this day,” Wyden said.
Though admitting he would inevitably vote for Brennan — which even some Republicans who assisted Paul did — Wyden lauded his GOP colleague for a consistent stand on civil rights and said “the executive branch should not be allowed to conduct such a serious and far-reaching program by themselves without any scrutiny, because that’s not how American democracy works. That’s not what our system is about.”
Later on MSNBC, host Rachel Maddow was insistent that Wyden had “engaged Senator Paul in debate.”
“I was careful to say it that way, because as far as I understand it, you are not participating in the filibuster of John Brennan`s nomination. You do believe he should get an up or down vote. You do not want it delayed,” Maddow told Wyden.
“Did this debate about congressional oversight and transparency on drones, did it get better today by use of this tactic?” she asked.
“I think the American people certainly know more about the fundamental question, which is we have to strike a better balance, Rachel, between protecting our security and protecting our liberty,” Wyden said. “…And this debate is just beginning. And the reason I went to the floor today is, I thought it was an opportune time to try to show that there is a new effort by both progressives and conservatives to try to show that in our country, it’s possible both to protect our liberties and at the same time ensure that we’re vigilant against the very real threats that are out there.”
The Senate filibuster is actually created by the lack of rules in debate. “When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him,” states paragraph 1(a) of Rule XIX. “No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.”
The filibustering senator must remain standing and “must speak more or less continuously,” according to the Congressional Research Service. Even when yielding for a question, Paul had to keep standing. Paul also noted that he wasn’t prepared for the filibuster but jumped in when he saw the floor was open — the majority leader obviously will try to structure the daily schedule to disallow for a minority filibuster if he knows one is in the works. Paul was able to sneak in because Harry Reid (D-Nev.) neglected to file for cloture on the Brennan nomination Wednesday morning.
Eating is not allowed on the Senate floor, which is why Paul was furtively sneaking bites of candy and an apple Sen. Mark Kirk (R-Ill.) brought for his colleague was removed from his desk by the sergeant-at-arms. Ironically, Kirk is the keeper of the “candy desk” — the old desk of Sen. George Murphy (R-Calif.) who, in the 1960s, began stashing sweets in his desk for his colleagues. Kirk keeps the desk stocked with candy made in his home state, including Jelly Belly, Milky Way, and Mars bars.
The Pastore rule requires that debate be germane, but it’s usually not enforced especially as a senator tries to maintain a filibuster. No matter, though, as Paul stuck to the topic, even as some of the senators who asked questions wandered off point.
Exceptions to the Senate rules in times of filibuster would have to receive consent from the presiding officer, and the majority doesn’t want to make it easy for the minority. If, for example, a senator confined to a wheelchair wanted to filibuster and needed to circumvent the standing-only rule, the majority would find itself running afoul of the ADA if it didn’t provide reasonable accommodation.