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December 06, 2012 12:30 PM What Filibuster Reformers Are Missing

By Jonathan Bernstein

Sahil Kapur over at TPM today has a very optimistic reading of the Merkley/Udall talking filibuster plan. As he tells it, the talking filibuster plan they are considering would “dramatically weaken what is currently an ironclad 60-vote requirement to move to a final vote on legislation without the unanimous consent of the Senate.” 

I have a new piece up at TAP looking at reform in general, and I’m much more pessimistic about that part of the reform package. Well, I don’t know if optimist/pessimist is the correct description here, but the point is that Senate reformers believe their plan will put an end to the routine 60 vote Senate, and I think it won’t.

Remember, the Majority Leader right now can force filibustering Senators to hold the floor indefinitely. Why don’t they? Because, Merkley/Udall believe, the burden of doing so falls the wrong way under Senate rules. For example, instead of speaking, they can enter a quorum call and rest until the majority party shows up. If the majority wants constant speech, then, they have to hang around the Senate floor. So instead of a challenge for the minority to keep talking, it becomes an obligation of the majority to be available. Reformers would change this: during a talking filibuster situation, new rules would simply force them to talk or else a vote would be automatic.

Reformers seem to believe that their plan would still allow filibusters in cases of intense minorities — say, for major bills or highly controversial nominations — but that for most issues, shifting the burden and increasing visibility would mean that the minority wouldn’t want to expose themselves to the blame for delaying the Senate’s business. 

I’ll concede that it’s at least possible it would work out that way in practice. But I think that’s highly unlikely.

If I were advising Mitch McConnell, I’d tell him (if these rules were in effect) that the best play is probably to respond immediately with a very much live, talking, filibuster on the very first item to come to the Senate floor — whatever that is. Go to the floor. For the C-SPAN cameras (and, I suspect, for the Fox News cameras, at least to some extent) talk about how the Democrats have imposed draconian, tyrannical rules that have ruined the longstanding traditions of the Senate, and how Republicans will fight back the only way they know how — by taking their case to the American people. 

And start talking, and keep talking. Yes, the new rules would make it at least somewhat more difficult. It’s not clear so far whether the minority would be required to keep 40 Senators close at hand or not, or just require them to fill the speaking slots. Sure, you won’t get too many volunteers for the 2-3 AM shift, especially after the first day or two, if Democrats insist on keeping the session going overnight. But they would manage, because the incentives are pretty strong.

That is: prove you’re willing to do it once, on a non-critical measure, and the whole thing collapses. 

Could the majority try to wait them out? Sure. But, again, every day of waiting is a day where nothing gets done. No regular legislation, no nominations, no appropriations, nothing. The majority simply can’t threaten, at least not if it expects to be taken seriously, to keep going indefinitely. The minority can; they just have to be able to physically handle the challenge. And even if the Senate stays in session constantly, it’s just not that hard for Senators to give a one-hour speech every other day or so.

Part of the calculation of the reformers appears to be that obstruction for its own sake would just be too unpopular for Republicans to be able to continue, or that Republicans would hesitate to publicly oppose what previously they were willing to oppose without publicity. Frankly, I think this is just plain nuts. Most partisans on both sides really believe in their positions — and really believe that if only they would get a fair hearing from the American people that their positions would become much more popular. And that’s without even getting into the conservative information feedback loop: on Fox News, a Republican filibuster would be portrayed as a noble effort in favor of some very popular, common sense position.

Not only that, but the logic of keeping the thing going would be pretty strong. After all, in a normal filibuster situation it’s possible at least in theory to bargain for a few minority party votes and no one really notices. But once something is elevated to a major national issue, the first Republican Senator to break with the party would be almost begging for a primary challenge. 

And for what? A little sleep and a trip back home to the district on the weekend? Sure, Senators are human and love their creature comforts. But that’s the only disincentive. Meanwhile, on the Democratic side, bills that could pass and nominations that could be confirmed would just build up on the Senate calendar, with no prospect of any rapid resolution.

To be sure: it is certainly possible to write a set of rules that would make a talking filibuster impossible to sustain for more than a few days. That’s not what they’re trying to do here, but yes, it could be done. But, as I’ve asked before, why do it that way? 

Look: it’s genuinely hard to figure out a way, by rule, to find a balance between majority and minority in the Senate that doesn’t either produce constant gridlock when the majority party is below 60 (or whatever number you pick) or produce, as I talk about in the Prospect piece, another House with its absolute majority party control. I think it’s great that the current group of Senate reformers have that goal, but making talking filibusters a part of the rules mix only makes it harder to actually get there.

[Cross-posted at A plain blog about politics]

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

Comments

  • GregL on December 06, 2012 1:22 PM:

    A single filibuster may be successful for the minority, but hundreds? If the minority tries to gum up the works too much, then the majority just culls their buff on the least significant vote. The rest of the minority has to decide if they want to risk becoming the "party of obstruction" over that minor issue and become unable to actually block a major issue (say a SCOTUS nominee) because they would poison their party's brand in the next election.

  • David C. on December 06, 2012 1:34 PM:

    Let it happen. If the GOP hadn't disrespected the traditional basis and means of using the filibuster, the country would not be in this state of gridlock. Realistically, I don't think there are 40 R senators willing to take it as far as the writer is describing.

  • paul on December 06, 2012 2:30 PM:

    This argument seems predicated on the notion that useful bills would pass or nominations be approved under the current setup. We have yet to see that.

  • Josef K on December 06, 2012 2:49 PM:

    A couple points in perspective:

    1. a "talking fillibuster" is literally that: talking. Whatever Senator has the floor could just bring in a dozen Tom Clancy paperbacks and start reading them cover to cover, over and over, until they collapse or loose their voice permanently. There's no conceivable way for the Senate rules to be written to keep a fillibuster speech specifically on-topic on the matter being debated and absolutely nothing else.

    2. the potential for abuse of even a "talking fillibuster" is, as Mr Bernstein points out, depressingly obvious.

    3. there hasn't been a serious case (that I am aware of) to keep the fillibuster rules in place beyond some kind of idealized nostalgia embodied by "Mr. Smith Goes to Washington". This dross about 'protecting minority rights' in the Senate has such a bad smell about it I can't take it seriously.

    At this point, and frankly looking back on the last 200 years of American history, I can't see a reason to fear the Senate actually having to function by majority vote first, and arcane parliamentary rules second. Doubtless there's plenty of argument to be hand on that score, but I'm so damned sick of the Senate current behavior I'll welcome any change. Call me short-sighted.

  • Sean Peters on December 06, 2012 2:58 PM:

    I agree that tinkering around with talking filibusters is suboptimal. In a perfect world, we'd just get rid of the Senate, which his horrifically malapportioned and serves no apparent purpose other than to obstruct progress. Obviously that's quite difficult to accomplish. The next best thing would be to eliminate the filibuster (or at least lower the cloture requirement to, say, 55). But I think the current package of filibuster reforms is best understood as a warning shot. Sure, the GOP could probably make the talking filibuster so painful that it would be impractical for the majority to sustain. But I think the message being conveyed here is this: keep gumming up the works and we're just going to get rid of it altogether. If the GOP is thinking more than one step ahead on this, they may wisely decide to stand down from filibustering absolutely everything of consequence.

  • meander on December 06, 2012 5:59 PM:

    One simple fix that should be in the mix: require the delayers to round up 41 votes to prolong the filibuster instead of requiring 60 votes to break the filibuster. That way, a 59-39 vote would allow things to proceed.