Republished with permission from Governing Magazine, by David J. Toscano

No holiday season would be complete without a homage to Jimmy Stewart and “It’s a Wonderful Life.” But as Congress once again appears gridlocked on critical issues like voting rights, perhaps Stewart’s famous filibuster in “Mr. Smith Goes to Washington” is also worth another look. The use of the technique by Stewart’s character, U.S. Sen. Jefferson Smith, was portrayed in the 1939 film as heroic, a celebration of the “common man” and an effort to protect the minority against the tyranny of the majority.

But Jefferson Smith’s 25-hour “talking filibuster” is nothing like how it is practiced today in D.C., whereby a single senator can compel almost any measure to gain 60 votes for passage — or even debate. Today’s Senate filibuster is an anti-majoritarian and opaque process that does not even require a senator to speak against a bill to prevent its passage.

To argue for a change or abolition of the filibuster is perceived in some circles as almost anti-American. Yet most democratic assemblies in this country do not have anything resembling the present approach to the filibuster in the U.S. Senate. In fact, most state legislatures have enacted rules that make filibustering to kill legislation almost impossible, and only seven states mirror U.S. Senate rules in requiring the votes of 60 percent of their members to end debate. None allow the “silent filibuster” that is found in Congress.

Filibusters do still occur in states, but mostly are much shorter and usually do not the prevent the majority from getting its way. In most cases, they essentially serve as protests that can be effective in marshaling public opinion in support of a position. Few can forget the 11-hour filibuster by Texas state Sen. Wendy Davis in 2013 to oppose the enactment of restrictive abortion legislation. Under the legislative rules, Davis was required to stand and talk continuously or she would lose the floor, and with it the vote; even leaning on her desk could bring the filibuster to an end.

Word of the Davis filibuster spread like wildfire through social media. People from across the country flooded the Senate with messages of support, and advocates packed the gallery in hopes that the senator’s aim would be achieved — that she could talk beyond the constitutional deadline for the end of the legislative session, thereby killing the bill. Even then-President Obama provided support, tweeting that “something special is happening in Austin tonight” and providing a link to the Texas Senate’s live video stream. Davis’s filibuster succeeded; she was able to run out the clock and defeat the bill. But her success was short-lived; in the next session, the Legislature passed the same measure.

The Texas Senate does not require a supermajority to stop debate, but a lawmaker can hold the floor as long as he or she remains standing and continues to speak on the issue before the body; in 1977, Texas Sen. Bill Meier mounted a 43-hour filibuster to oppose a bill restricting access to public records. If Texas’ U.S. Sen. Ted Cruz were a state senator, he would never have been able, as he did during a 2013 filibuster, to read Dr. Seuss’ Green Eggs and Ham to his children at bedtime; the rules of Texas and most other states would simply not permit it.

‘A Pertinacious Minority’

One explanation for these stricter rules in the states is historical. State legislatures have always had a stronger majoritarian streak than the U.S. Senate. At least 12 state constitutions had been adopted prior to our federal charter, and included many more elements of direct democracy.

Founders like James Madison and Thomas Jefferson argued strongly for majoritarian principles; one reason why many leaders wanted to change the Articles of Confederation is that they included provisions that allowed the minority to scuttle the will of the majority. Our constitutional convention specifically rejected proposals that would have required a supermajority vote before sending legislation to the president. Madison believed that majority rule was a basic republican principle. While not using the term “filibuster,” Alexander Hamilton nonetheless argued in Federalist 22 that “If a pertinacious minority can control the opinion of a majority … and thus … the smaller number will overrule that of the greater … then the measures of government must be injuriously suspended, or fatally defeated … [and] its situation must always savor of weakness, sometimes border upon anarchy.”

Jefferson even wrote a treatise on parliamentary procedure that is still cited in state capitols and from which many legislative rules designed to end debate have been developed. Using English parliamentary practice as a guide, Jefferson argued that lawmakers should not be permitted “to speak impertinently or beside the question, superfluously or tediously” and gave lawmakers many techniques for ending debate. Motions to call “the previous question” or “the present question,” arcane as they sound, are the types of rules in states that both prevent legislative gridlock and protect majoritarian rule. Jefferson’s rules were initially adopted by the U.S. Congress. The Senate, however, abandoned the rule allowing a motion to call the previous question in the early 1800s. But many states still retain the rule or something like it.

In some states, rules for ending debate are deeply imbedded in the political culture of the legislature. Virginia, for example, has no supermajority requirement to end debate, and sees few filibusters, the longest of which purportedly was a five-and-a-half-hour exercise by Sen. Willard Moody in 1981. Debate on bills is typically robust and can be lengthy, but when the motion is made to call the present question to force a vote, it is occasionally greeted with applause, and a simple majority then votes to end discussion. Virginia democracy has survived over 400 years with no Washington-style filibuster.

Useful Vehicles for Protest

Filibusters such as the 37-hour marathon mounted by Missouri Democrats in 2015 against anti-gay legislation can be useful vehicles for protest, but rarely derail legislation that has majority support. The Show Me State so rarely sees this practice that a motion to call the previous question and end a debate, though in the rules for years, has been described as the “nuclear option.”

State filibusters are more prevalent in legislatures such as Alabama’s, South Carolina’s and Nebraska’s where supermajority votes are necessary to end debate. But, with the exception of the uniquely unicameral Nebraska Legislature, filibusters rarely succeed even in those states. Many not only impose time limits on debate but have Republican supermajorities that can usually bring discussion to a close. Recent filibusters in Alabama against medical marijuana and voting rights fell apart, for example, after proponents prevailed on procedural motions to compel votes.

South Carolina experienced a 100-hour filibuster in 1966 to protest a reapportionment plan, and more recently witnessed use of the technique in several consecutive sessions to temporarily block a bill to ban most abortions in the state. The measure finally passed this year, and Republicans took that as an opportunity to change the rules to reduce the ease of filibusters.

The experience with the filibuster in the states provides clear evidence that ending the Washington practice would not destroy democracy as we know it. If you want a better model of the filibuster that respects minority rights without destroying majoritarian principles, look to the states.

David J. Toscano, an attorney, is a former member of the Virginia House of Delegates and the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives.