Ten Miles Square


November 30, 2012 12:07 PM Counting Filibusters and Getting Reform Right

By Jonathan Bernstein

Longtime filibuster opponent Hendrik Hertzberg encountered a pretty good Michael Tomasky item on the Reid/Merkley/Udall reform package which wondered whether getting rid of the motion to proceed and forcing talking filibusters would be worth the bother, and was puzzled. Sure, Tomasky eventually concluded that some reform was better than none, but Hertzberg thinks it’s obvious (his emphasis):

For the past three years, as I noted in that last post, the Republicans have been firing off filibusters at an average rate of a hundred and twenty-nine per year. That comes to very nearly one filibuster for every single goddam day the Senate is in session.

However, if the filibustering senator or senators must actually filibuster—if they must stand up on the Senate floor and talk till they’re blue (or, more likely, red) in the face—how would it be possible to keep up the one-a-day pace? How could there not be many fewer filibusters than there are now? And how could that not be a very Good Thing?


First of all: cloture petitions — and that’s what he’s using for this count — are simply terrible measures of filibusters. They may be the least-bad measure, to be sure, for some purposes. But in this case, cloture petitions massively underestimate the total number of filibusters. In a true 60 vote Senate, which is pretty much what we’ve had since 2009, every single measure is being filibustered. Every single bill. Ever amendment to every bill. Ever nomination. That’s true whether or not there’s any actual delay at all; simply insisting on 60 is enough to make it a filibuster. And since November 2008, Republicans have insisted on 60 for almost everything.

But second of all: if “a filibustering senator or senator…must stand up on the Senate floor and talk till they’re blue” — they’re obviously not only stalling whatever it is that’s on the floor at that point, but they’re also stalling every other piece of Senate business. Hey, I’ll add emphasis of my own: as long as the talking filibuster is going on, it blocks every single bill and nomination.

Which is precisely why talking filibusters died: they are bad for the majority party, not the minority.

The goal isn’t to reduce cloture petitions! The goal is to allow the Senate to function better. And it’s not just about 60 vs. a simple majority; it’s also about being able, among other things, to rapidly get through non-controversial measures (including, yes, nominations).

And part of this, the part I’m most worried about right now, is that while partial reform (as Tomasky argues) is probably better than none, there are only so many shots at this — they should try their best to get it right. They may not be able to because they don’t have the votes. But they really shouldn’t fall short because they’re attached to some fantasy that if only the minority were forced to explain their position, they would be forced to give up. That’s just not going to work.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.


  • bdop4 on November 29, 2012 6:15 PM:

    So, what IS going to work? What are you advocating for, complete removal? If not, what partial reform gets the job done?

    It seems that any partial reform will not work when the minority party is willing to do ANYTHING. The question then becomes how much pain, both political and physical, you can bring to the process so even the bone-headed idiots will start to recoil at the thought of a filibuster.

    Again, what's your solution?

  • Ed on November 29, 2012 6:46 PM:

    I understand the point, but I don't agree. When talking filibusters last died, we did not have 24 hour cable news, internet, social media. A filibuster would happen and not attact as much news (or not much immediate new coverage). Today, every cable show and blog would be telling Americans "Republicans are preventing the Senate from carrying out any business because they don't want to allow a vote to nominate X". The effect of that kind of media attention to the talking filibuster would be to inflame Americans and make them want to (further) punish their Republican Senators for refusing to allow government business to procees. Right now, every time the majority does not get 60 votes, the media reports it as "the bill failed", rather than "the Republicans prevented a vote on the bill". That will end with the use of filibusters. Just my view.

  • Doug on November 29, 2012 7:04 PM:

    I'm with Ed (I ALWAYS wanted to say that!).

  • paul on November 29, 2012 7:20 PM:

    I'm confused here. If everything now takes 60 votes, forcing talking filibusters isn't going to slow things down any more than they're already slowed down, seems to me. Unless you think that the senators talking are going to engage in a continual series of quorum calls. There will just be some set of twits talking while other senators go about their business.

  • Ed on November 29, 2012 7:44 PM:

    To Paul, I think the point is that everything won't take 60 votes. Instead, if you want to prevent a vote from happening you will have to keep talking to prevent it. So you will see John McCain trying to talk for 24 hours straight in order prevent a vote for Rice as SoS. That is what will get the media attention and that is what will make McCain and the others look like spoiled children on TV.
    (The real reason I felt the need to respond to Paul is so that there would be two comments from Ed. After all, two Eds are better than one.)

  • Robert on November 29, 2012 8:04 PM:

    I also heard something about transparency...it forces the filibusteree to come forward and argue his point...I think...I hope this would be the minimum...just to get a name behind the obstruction so we can ask WHY...

  • Bob M on November 29, 2012 9:56 PM:

    I'm with Ed, too.

  • Shantyhag on November 30, 2012 5:10 AM:

    40 votes to sustain instead of 60 votes to end debate. A panacea? Maybe not, but damn close.

  • Ed on November 30, 2012 7:12 PM:

    I'm with those other Eds.

  • D.Hunnel on December 02, 2012 11:27 PM:

    If YOU don't have what you consider "bullet proof" suggestions for fillibuster reform, who would you say, from your "trawling the waters", would be good references to "hit up for" (or dig into past statements for)useful info?? AND, just as a side note, I WOULD hope that anyone positing a change will consider how it works if the Democrats want/need to make use of the tool for GOOD...

  • D.Hunnel on December 02, 2012 11:38 PM:

    And (avoiding the usual "nobody READS the other comments" accusation) I -DO- strongly agree with the agamogenetic Hydra-"Eds" proliferating above -- in TODAY's media-rich environment a talking fillibuster would drive people CRAZY! AND lead to more than a few people to make total fools of themselves (give 'em more chances to make "justifiable rape" comments, SOMEbody will shoot themselves in the foot or other low-hanging body parts). What if they ARE willing to blather on ad nauseum? Well, we wouldn't be any worse off than we are now, and yeah, it would be DRAMATICALLY obvious "the Republicans blocked it" versus "the bill failed". Increase the public level of "Informed" and you quickly arrive at "Too Informed to Vote Republican". Cool!