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March 08, 2013 1:50 PM Rand Paul and the Real Filibuster Problem

By Jonathan Bernstein

No, Rand Paul’s filibuster wasn’t, as Josh Marshall thinks, “the best argument of the need for reform” — and particularly, for Jeff Merkley’s idea that current successful filibusters (that is, those where cloture should not be invoked) should become talking filibusters.

Suppose, for example, that the Merkley plan went into effect this week. And suppose Democrats nonetheless brought up the Halligan nomination. The cloture vote happens, and fails, since every Republican but one opposes cloture. Under the new rules, that triggers a talking filibuster.

What happens next? Republicans must decide whether they want to do it or not. What does yesterday’s events tell us? It’s a terrific opportunity…for the Republicans! The press absolutely loves talking filibusters! Sure, they might not if it became a regular thing (as Kevin Drum points out in an excellent post), but for now it is. Republicans would be prepared for this; they would organize it carefully, tag-team style, as both current Senate rules and Merkley allow for.

As for content…I’m far too modest to give myself a catch of the day, but I’ve been saying for years that a modern talking filibuster would be fueled by the endless resources of the internet. Which Rand Paul proved to be true by reading, not the phone book, but blog posts and articles. Republicans filibustering against Halligan would have plenty of stuff to choose from in the conservative blogosphere, and you can be certain that with the incentive available that their material could be read on the Senate floor, both professional and amateur bloggers would be happy to crank out more and more about what’s wrong with Halligan, and why filibusters are good things, and how important the DC Circuit is and how much Halligan could destroy America if she was on that panel, and on and on and on.

The incentives for doing it are considerable; if they don’t back up their cloture votes with the newfangled talking filibuster, then the 60 vote Senate is dead and they lose a ton of influence. And after all this specific nomination is, in fact, substantively important.

So if Merkley is in effect, the Halligan nomination is still on the floor and the Senate never even gets to the Brennan nomination yesterday.

Or, most likely, today. Or tomorrow.

Gaming these things out is sometimes tricky, but it’s pretty easy to see what happens next in some ways. Liberal newspaper editorial boards — the ones that already had editorialized for Halligan anyway — deplore the continuing filibuster. But the conservative media absolutely love it. They pick out conservative heroes of the filibuster — indeed, the sudden possibility of become the darling of Fox News and the rest of it makes scheduling the filibuster relatively easy for Senate Republican leadership (if Harry Reid keeps the Senate in all night, it’s easy to imagine volunteers eager to do a four or five hour graveyard shift, knowing that they’ll certainly get plenty of conservative media coverage and with a good chance they’ll even get positive coverage in the neutral press).

Now, I realize there are differences of opinion about how long this can go on. But if the Republicans can keep it up through the weekend…well, they still haven’t done Brennan. They haven’t done a CR, either, and by Monday the calendar is getting tight to pass something and reconcile it with the House and then pass that, too — especially since if they do try to pass a Democratic version it is subject to a filibuster, and that filibuster could go on for days. They’re not getting anything else done, either: no other nominations, no legislation, nothing. They still have (presumably) two days of the Brennan nomination to get through.

To be sure: at some point, whether it’s Day 3 or Day 6 or Day 10, it may become more difficult for the GOP leadership to schedule Senators. The celebrity for doing the graveyard shift, if Reid does keep them in overnight, is going to be a lot more appealing to the first Senator to do it than the fifth.

But the rewards are terrific, as well. An extended talking filibuster on one judicial nomination is really a filibuster of every single judicial nomination; after all, all that time spent talking about Halligan is time that the Democrats aren’t bringing up any other judges. Nor are they bringing up executive branch nominations. Or immigration, or gun legislation, or minimum wage.

There are 45 Republican Senators, 44 of whom appear to have opposed cloture on Halligan. Even if Harry Reid keeps the Senate going 24 hours a day, that’s basically half an hour a day per Senator, or a bit under four hours a week. Is that really all that much of a burden? Granted, if the positive need for 41 is part of the reform they would have to stay in town to make sure they have 41 every time a new cloture vote is called, so they lose weekends home in the district even if they’re not scheduled to speak. But again: the incentives to hang in there are just very, very, strong.

And meanwhile, the White House is increasingly upset if Brennan and other cabinet picks aren’t being confirmed. The deadline on the CR is approaching. Bills are ready to come to the floor. The majority actually wants to get things done! But instead, they’re forcing Republicans to continue talking if they want to block one nomination…but as a bonus, they also get to block absolutely everything else on the Democrats’ agenda.

I really just don’t see how that’s a win for the majority.

[Originally 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

  • JM917 on March 09, 2013 3:38 PM:

    The answer is obvious: GET RID OF THE FILIBUSTER. It is the most crippling and irrational block to governance since the old-time (17th/18th-century) Polish Sejm's "liberum veto," which gave any member of the legislature the right to bring everything (including the legislative session itself to a halt by simply uttering two words: "I forbid."

    Our own constitutional fathers (Madison and the rest) were well aware of this evil Polish precedent, and they strove to make governance possible while still assuring the minority side of its rights. They would be appalled at what has happened to the U.S. Congress nowadays and would probably be preparing for a new Constitutional Convention.

    Harry Reid's gutlessness is far too costly.

  • gdb on March 10, 2013 1:31 PM:

    Right on JM. I've been saying that for over 4 years. BHO's biggest error and original political sin that has doomed his presidency to a second tier among over 40 is NOT eliminating the filibuster in 2009. And he still doesn't get it.

  • gdb on March 10, 2013 1:32 PM:

    Right on JM. I've been saying that for over 4 years. BHO's biggest error and original political sin that has doomed his presidency to a second tier among over 40 is NOT eliminating the filibuster in 2009. And heand Reid still doesn't get it.