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Tilting at Windmills

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March 4, 2010

EXPLORING RESPONSES TO OBSTRUCTIONISM.... We all know that when Republicans stop the legislative process with filibusters, they're not actually filibustering. That is, we don't see Jim Bunning standing on the Senate floor, reading from telephone books, trying to literally talk bills to death.

But as GOP tactics undermine the integrity of the institution, and prevent the U.S. government from functioning as it should, there's apparently renewed interest in the Senate majority exploring its options.

Basking in their political victory over Sen. Jim Bunning's (R-Ky.) blockade of an extension of unemployment insurance, Democrats say that they may force Republicans to talk endlessly on the floor in the months leading up to November's elections.

For months, House Democrats -- and liberal activists -- have implored Senate Democrats to let filibusters unfold over hours on the Senate floor, rather than try disposing of Senate business with cloture votes and unanimous consent requests.

Asked Thursday why Senate Democrats don't force Republicans to carry out filibusters, Senate Majority Whip Dick Durbin (D-Ill.) said, "We may."

Durbin added that the majority will "consider our options."

If reader emails are any indication, this is a subject of great interest to many of you. But everything I've seen suggests Mr. Smith-style filibusters just aren't an option. The Senate Majority Leader's office put together a memo on this about a year ago, and found that a filibustering senator "can't be forced to keep talking for an indefinite period of time." Bob Dove, who worked as a Senate parliamentarian from 1966 until 2001, concluded that Reid's analysis was "exactly correct."

Jonathan Bernstein had a very good item on this a couple of months ago, explaining that forcing real, live filibusters wouldn't work.

[T]here is simply no way, under Senate rules, for the majority to prevail over a determined filibuster conducted by multiple Senators and supported by at least forty-one Senators. No way. Can't be done. If the majority forced a live filibuster -- forced the minority to talk indefinitely -- then, well, they would talk. Forever. Until, eventually, the majority, which has other responsibilities (appropriations bills, other must-pass bills) admitted a humiliating defeat, and moved on. [...]

In real life, if the Democrats forced them to talk, Republicans would simply carve up the time in half hour or hour long intervals, something like that, speak their piece, and yield to the next in line. It wouldn't be dramatic at all.

OK, so the concept of a real, live filibuster probably isn't going to work out. But if Dems are considering their options, maybe there are heretofore unused procedural steps that the majority can utilize. I'd be interested to see what they come up with.

Steve Benen 3:10 PM Permalink | Trackbacks | Comments (33)

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OK, so the concept of a real, live filibuster probably isn't going to work out.

Eh. It would be worth it just to make Boehner dance like a trained monkey.

Posted by: Quaker in a Basement on March 4, 2010 at 3:16 PM | PERMALINK

OK, it may not work for a "live" filibuster of a minority of 41. But what about these idiotic holds of only 1 or 2 senators (e.g., Bunning now putting holds on nominations after the other guy gave up on it)? If nothing else, it would put the true roadblockers on the record. Do you really expect that Bunning has the support of the other 40 Repubs with his holds on the nominations? And after 5 senators completed the "live" filibuster, what then?

Posted by: artsmith on March 4, 2010 at 3:22 PM | PERMALINK

But even the sight of Republican after Republican talking about how "bad" it is to say, provide health insurance for everyone, would be a powerful tool for Democrats -- not for Republicans. The Democrats could make it dramatic by repeating to anyone who would listen and put them on tv that the Republicans were being obstructionist and were holding up every good thing that should be happening.
And if every/a lot of Republicans were participating, that would mean a lot of material for individual opposition ads.

Posted by: elisabeth on March 4, 2010 at 3:23 PM | PERMALINK

So what? As I've said on other similar threads, it doesn't matter if they don't actually have to talk nonstop. Just coordinate it with a comprehensive messaging campaign, be aggressive, and make them pay a political price.

Every time any Democrat, from the President to some backbencher, gives a speech there should be a sign: "REPUBLICAN FILIBUSTER - DAY [ ]". The speaker should, in every case, start by accusing the minority of blocking the business of the American people.

In every case make it clear that it's Republicans blocking things. The public may take a while to catch on, but they will if the messaging is consistent.

Until, eventually, the majority, which has other responsibilities (appropriations bills, other must-pass bills) admitted a humiliating defeat, and moved on.

It's only a humiliating defeat if you go into it expecting a humiliating defeat.

As for the must-pass bills, pass them first. Or withdraw the filibustered legislation if a new must-pass comes up, pass it, and then return to the filibuster. Is that not feasible under Senate rules?

Posted by: Equal Opportunity Cynic on March 4, 2010 at 3:25 PM | PERMALINK

So what's wrong with allowing them to take turns? The point is they are still preventing a vote, and as time passed you would have the dramatic headlines: "Filibuster Day 3: Republicans Still Talking, Still Blocking Vote."

It would make it quite clear who is in fact using tricky parliamentary procedures to subvert majority will. That's the point. Not a snappy movie featuring a charismatic loner a la Mr. Smith Goes To Washington. A dull, tedious, boring, slow, mule-headed subversion of democracy.

Posted by: Jon on March 4, 2010 at 3:25 PM | PERMALINK

Until, eventually, the majority, which has other responsibilities (appropriations bills, other must-pass bills) admitted a humiliating defeat, and moved on.

It only makes sense for the majority to move on if the next must-pass bill stood a chance of not getting filibustered too. Not much chance of that these days.

Posted by: emd on March 4, 2010 at 3:32 PM | PERMALINK

If I remember correctly, all you need is two opponents, one to talk, one to suggest the absence of a quorum. That means enough Dems have to show up on the floor to establish a quorum and permit business (i.e., the talking) to continue. In other words, a handful of Senators can jerk around the majority forever.

Posted by: Bill Harshaw on March 4, 2010 at 3:33 PM | PERMALINK

I got three words for everybody.

Air Traffic Controllers

Remember when Reagan dropped that bomb on them. Up till then everybody was wringing their hands over illegal strikes, etc. Nothing could be done. Etc Etc Etc.

All of a sudden it became a game changer, and one of the events that defined the Reagan Era.

Now whether you agree or not with what he did. Think about filibusters in the same light. So what if it doesn't work exactly as planned. But think of some of the hidden benefits

First, what a pain in the ass for the minority to have to wrassle up a tag team to defend a position.

Second, talk about a great illustration of obstructionism..... illuminating in all their glory the 'Party of No'.

At the end of the day, doing nothing and hoping for change is the definition of insanity. Make them sweat and work for the filibuster. Got nothing to lose and everything to gain.

Posted by: mike reilly on March 4, 2010 at 3:35 PM | PERMALINK

Competent scheduling could force the talkers to miss fundraisers, flights home, anniversaries, etc. The more time they spend on the Senate floor, the less time for events where they get fawned over !

Posted by: H-Bob on March 4, 2010 at 3:38 PM | PERMALINK

Hmm, Jon and emd, you may be on to something. Picture it: Republicans talking endlessly and preventing votes on bill after bill after bill, sure to provide footage of the deeply stupid at many points. It would be what we never got to see live and in color in 1995 -- Republicans shutting down government. That backfired on them rather spectacularly and it was essentially invisible. If there's anything Americans hate, it's paying politicians to do nothing. And for once, it would be crystal clear who's doing nothing to solve America's problems.

Posted by: dalloway on March 4, 2010 at 3:39 PM | PERMALINK

Appealing as the suggestions above are, their efficacy requires a mass media that doesn't simply ignore the Dems' efforts to publicize and exploit the Publican obstructions --- as they've largely ignored the obstructions themselves.
I guess it would be interesting as an experiment, to see just how far the networks and cable-news would go in suppressing reality. But I wouldn't be betting a lot on the outcome...

Posted by: smartalek on March 4, 2010 at 3:41 PM | PERMALINK

In real life, if the Democrats forced them to talk, Republicans would simply carve up the time in half hour or hour long intervals, something like that, speak their piece, and yield to the next in line. It wouldn't be dramatic at all

I would like to see it once, just to see what the public reaction would be. I can't imagine too many people would think them anything but a bunch of clowns.

Posted by: Christopher on March 4, 2010 at 3:44 PM | PERMALINK

But those big mean thuggies might keep talking until the end of time. They are so scary. They can't even play nice at tea party.

Posted by: Michael7843853 on March 4, 2010 at 3:46 PM | PERMALINK

People talking for the sake of talking tend to say things they often wish they hadn't said. Things that might be helpful to have on television, or useful in a campaign ad down the road.

Let's let it play out a couple of times, and then decide if it isn't useful.

Posted by: Gretchen Laskas on March 4, 2010 at 4:03 PM | PERMALINK

Dove & Bernstein are correct in that the Democrats cannot prevail so long as the Republicans maintain a filibuster. Bernstein also concedes that a 'real' filibuster could succeed as public relations, and that is how the Democrats should proceed. Do not expect to break the filibuster, instead structure it to shift public perception.

Here is a plan that could use a real filibuster to break all filibusters. It would lose the battle to win the war:

First read Tom Udall's Constitutional Option (yes, it's worth the time, you are political junkies, aren't you?)

http://tomudall.senate.gov/?p=blog&id=383

A short description of it is nuclear option lite; only available at the start of a new Congress, but much easier to defend. Setting up the board for the beginning of the next session is where the show filibuster comes in.

A show filibuster will eat up weeks of floor time, so if the Democrats start it they need to be willing to finish it (a subject in itself, I know). Here is the sequence

1. Democrats wait for the Republicans to filibuster a Bill that is both popular and unimportant. Popular means it is a bill some Republicans will filibuster before they vote for it. Unimportant makes the filibuster politically costly to sustain.

2. The Democrats announce they will fight the filibuster for three weeks only, and that yes, this will be the real thing. The Democrats announce to all that this filibuster will prove to all just how ridiculously obstructive Republicans have become. The Democrats will profess regret that the Senate will be effectively shut down for three weeks, but after all it is the Republicans who are filibustering. The Democrats are happy to have an up or down vote any time, etc.

3. The Senate turns into a circus for three weeks. The Democrats mock and taunt the Republicans who prefer to shut down the Senate over this innocuous and popular bill, rather than just letting it go to the floor for an up or down vote. (Democrats mouth the phrase "up or down vote" many many times). Republicans go from glee about all the free C-Span to discomfort as the media narrative increasingly focuses on what the modern filibuster really is, and everyone starts to wonder why the Republicans are using the biggest hammer in the toolbox over this popular and insignificant bill.

Announcing the three week time limit is critical. Never get in a game of chicken with someone even crazier than you are. That way everyone knows the circus ends, and the fight is only over the story the media tells the public.

4. The public, newly educated in modern filibuster, accepts the Udall style Constitutional Option at the start of the next term. The filibuster is reduced but not eliminated following the Harkin template to preserve "minority rights". It is only a reform to stop abuse, not a revolution. Mend it, don't end it.

There is a chance that the Republicans will try to cut their losses by dropping their filibuster. In that case the Democrats warn the Republicans they had better behave and declare victory. In this case the Udall maneuver may or may not be invoked next session depending on how well the P.R. campaign went. The Democrats will in any case have succeeded in putting a cost on the filibuster and reducing its use. Remember the gang of 14?

Unlike the time limit he Udall next term endgame is not announced in advance. The media circus has to be about the battle, the war plan has to be kept secret, setting up for a big surprise the next term.

Posted by: tomtom on March 4, 2010 at 4:07 PM | PERMALINK

Forcing the Republicans to actually stand up and filibuster and bring the government to a halt is exactly what many people are calling for. The end of this kind of filibuster is forced by public opinion, not bladder control. The "humiliating defeat" is administered when the majority caves in without doing this.

Gingrich tried shutting the government down and lost. Obviously, who benefits will depend on who is blamed for the stoppage. A win for the majority is not guaranteed, but a loss is not either.

Posted by: skeptonomist on March 4, 2010 at 4:17 PM | PERMALINK

Here are a couple of things you can do:

One - let them filibuster and keep talking, but hold quorum calls when less than half the Senate is there. Yes, they can keep talking, but the Democrats can force all 41 to be there. As I understand it, during a Quorum call, the Sergeant-at-Arms has to round up members (even phyiscally) as necessary. Order him to start with the filibustering members first, so all 41 must be present, and then only 10 of the Democrats must be there. So, the Democrats can sleep in shifts, while the Republicans will be up all night.

Two - Strip them of earmarks. As I understand it, most of these earmarks are in either a pre- or sometimes even post-conference report on a bill, and not actually in legislation. Tell the Senate staff that minority members may not have access to this report without the Majority Leader's approval. If necessary, vote out through the committee process, the various pet-projects of Senators from red states. Now, sometimes, a big red state with 2 Republican Senators like Texas will have some Democratic Congressman, but the fine details will be worked out.

Three - Cut off minority Senator access to the Cabinet Departments. President Obama can order any cabinet member that all requests must go through the majority party. There is no reason a Senator Shelby or any other Republican Senator should have access to a Defense Department Undersecretary, to steer his pet projects through.

Four - Slow walk any approved projects for Republican Senators that you can't cancel. Let them know you are going to take the maximum time, and put the maximum scrutiny on their projects. If they have the slightest reason to be cancelled, they will be.

Five - stop posting must-pass legislation online. If they aren't voting on the bill, then don't allow them into the conference committee between the House & Senate bills, and don't post it online anymore for 72 hours. Put the most liberal members on the conference committee. I know - this is non-transparent, and may even hurt the people. But I've heard plenty a Congressman or Senator complain - "We don't even know what's in this bill and we're told we have to pass it." Yup. It might have a Public Option in there. It might have Single-Payer. And it's attached to the Defense Department Authorization bill. Maybe. Maybe not. Good luck reading 2000 pages in 30 minutes before the vote is scheduled. Or vote against the troops.

Posted by: Chris on March 4, 2010 at 4:20 PM | PERMALINK

Forcing Republicans to talk as nauseum would be good for electing Democrats though. Who here thinks TV images of Republicans pulling their puds 24/7 wouldn't turn off normal americans?

Posted by: kindness on March 4, 2010 at 4:22 PM | PERMALINK

Just pass the damn bill

Posted by: Kurt on March 4, 2010 at 4:31 PM | PERMALINK

Can't Reid keep them in session indefinitely ? No one goes home until we vote, he's done it before.

Posted by: ScottW on March 4, 2010 at 4:43 PM | PERMALINK

First, This:

Eh. It would be worth it just to make Boehner dance like a trained monkey.

...is why people on the left shouldn't get too cocky about being more "politically savvy" than the right; when the House has filibusters... then we will see Boehner dance. :)

Second, I tend to agree with others... let's make them talk, and see what develops. The point of a filibuster is that no, you can't stop the debate while 41 Senators vote to continue it... but after a point, there won't be 41 who think it's worth conitinuing forever. There just won't. And until you draw a line - somewhere - you essentially allow what's happened: just threaten your 41 votes, and there you are, stuck. Control is now in the hands of the 41. I think it's obvious that a "filibuster" that's just about "we will fail for you to get 60" is easy pickings. Make them do the work... and eventually, someone will get bored, or frustrated... or the public will call them idiots. Any of those outcomes, it strikes me, is win/win. We surely won't change anything until someone actually forces the issue, somehow.

Posted by: weboy on March 4, 2010 at 4:47 PM | PERMALINK

Just nuclear option the filibuster now. You know it is 100% certain the Repubs are going to get rid of it when they next have 51 votes in the Senate. There won't be any significant wafflers the next time like there were with the gang of 14.

So the Dems should just start shouting "up or down vote" right now and have done with it!

Posted by: Evolutionary on March 4, 2010 at 4:56 PM | PERMALINK

The purpose of the filibuster is to extend the debate, so a vote cannot happen w/o all the relevant facts, right ? So expecting the people who are wanting to extend the debate, to debate, isn't unreasonable.

What is unreasonable is using a rule for other then it's intended purpose. You know like blocking an entire party from doing it's job.

Posted by: ScottW on March 4, 2010 at 4:56 PM | PERMALINK

David Waldmann/Kagro X/Congress Matters explained why a filibuster can't in practice be broken.

At any time during the filibuster the minority can suggest he absense of a quorum which triggers a roll call which requires the majority to muster 51 votes. If not the Senate has to adjourn for the day. The minority needs to only have one senator at a time available while the majority needs to keep 51. End result elderly Republican Senators get to sleep in comfort while younger colleagues trade off holding the floor whereas older Dem Senators have to be available around the clock for quorum calls. It is not the filibusterers who get worn out.

Posted by: Bruce Webb on March 4, 2010 at 5:34 PM | PERMALINK

Chris has the quorum thing backwards.

It is in the filibusterers interest to have quorum calls fail. It kills all action for the day. The Minority only needs to keep all but a handful of members out of the physical and jurisdictional reach of the Sergeant of the Senate and they are home free.

Posted by: Bruce Webb on March 4, 2010 at 5:42 PM | PERMALINK

My husband went to the opthalmologist today and the office was handing out a letter for patients to sign protesting that thanks to "Obamacare," medicare would be cut 21% effective Monday.

He says most of the patients are older, needing cataract surgery.

No mention of Bunning, needless to say.

Posted by: marianne19 on March 4, 2010 at 6:24 PM | PERMALINK

Rather then trying to force the minority to actually filibuster why not just schedule more votes. In my opinion the main issue is that nothing is brought to the floor unless they already know that it will pass ahead of time. Why? The reason that the Bunning situation has been such a boost to the democrats is that Bunning actually went out on the floor in front of the cameras and showed what the Republicans have been up to for the last few years. Why isn't this done with more issues and more administration nominees. Make the republicans use their procedural tricks and cast those no votes on cloture in public for everyone to see. Show that there is one party trying to do the work of the American people and that the other party is blocking their every attempt. It may not actually change the republicans behavior but at a minimum it would energize the Democratic base by showing them that their elected officials are actually trying instead of just saying well, we won't win, so lets not try.

Posted by: Tired Of It All on March 4, 2010 at 6:44 PM | PERMALINK

Ah, so Reid doesn't force the Republicans to actually filibuster because there's no way for the Dems to break it? NO SHIT, SHERLOCK. That's the damned point! They can't break it, but the Republicans have to keep talking. This drags on for weeks. Nothing gets done. And at that point, it should play out as "The GOP has shut down the Senate to avoid a vote on X." We know how the GOP shutting down the Senate went before, yes? Game, set, and fucking MATCH.

Posted by: Toast on March 4, 2010 at 6:51 PM | PERMALINK

That is a stupid analysis that completely misses the point. The point isn't that you would defeat a filibuster by making them talk until they couldn't talk anymore. It is that by making them essentially shut down the Senate by 'taking turns talking' and shutting down all other business, it would make it clear to every one even the most low information voter out there, even fucking Brian Williams, who was at fault for nothing getting done in Congress. It would no longer be a question of 'Why can't the Democrats get anything done?' It would be, "Why won't the Republican's shut the fuck up?"

Posted by: SW on March 4, 2010 at 7:08 PM | PERMALINK

I especially agree with the last three points.

I think all can agree that the Reps are the absolute masters of the universe in controlling the talking points line, and that is reinforced by having an actual network 24/7 feeding them their talking points in one endless loop de loop.

Someday somebody is going to write a book about the propaganda wars and the rise of Fox News and its impact on the political process.

But Republicans have one big achilles heel. They cloak their crazy philosophy in the Bush-like "compassionate conservatism". All the better to pull the cloak off in the form of making them truly walk the talk with the filibuster. Go ahead, make my day...... shut down the senate... get your Jim Demints and Bunnings to lead the verbal charges. Then let the Tea Parties pressure the McConnels and Lamarrs and Snows publicly support what these fools are doing.

Change the dynamic from "a plague on both their houses" to outing the ones who have been responsible since Clinton in '93 with endless investigations, impeachments, and now record breaking filibusters. Show the world who these people really are.

Posted by: mike reilly on March 4, 2010 at 7:47 PM | PERMALINK

You know, by the time they get done studying this, and negotiating within the Democratic caucus, and finally agree to do something about it, they're not gonna be in the majority any more anyways--but you can bet the Republicans will change it within hours, if not minutes. So I guess that's something to look forward to.

Posted by: Allan Snyder on March 4, 2010 at 8:46 PM | PERMALINK

Irrespective of what is done in the short term, the Senate rules need to be changed immediately prior to the next congress. In the next Congress these unanimous consent decree and filibusters must be structured so that if parties want more debate they had better debate. When they physically can't continue then the debate ends and the vote is held. There is no reason that the rules of the Senate have to be the same in every Congress.

Posted by: rk on March 4, 2010 at 10:22 PM | PERMALINK

Wonderful ideas around how to use Republican filibusters to advance progressive issues.

Now if we only had a Majority Leader who was willing to act like a Democrat.

Posted by: zak822 on March 5, 2010 at 11:25 AM | PERMALINK
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