The "Live" Filibuster, One More Time

I guess we're just never going to kill off the supposed virtues of the "live" filibuster for the majority, but I'll give it one more try, since Time's Karen Tumulty is hawking the idea regularly, and Doris Kearns Goodwin and Ed Rendell both spoke in favor of it this week.  So, once more....

There 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.

Tumulty is correct that there is nothing in the current Senate rules to keep Harry Reid and the Democrats from forcing a live filibuster.  They have every right to do so.  What they don't have is any reason to do so, because it won't work.

I think some of the confusion here is between delaying tactics in general, and the filibuster per se in particular.  I'll start with the latter.  As I said, there 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.

Tumulty quotes Doris Kearns Goodwin, who wants to see "Republicans, trying not to go to the bathroom."  Well, sure, who wouldn't, but a filibuster isn't going to achieve that.  Doris Kearns Goodwin also spoke (on the Daily Show) about how Strom Thurmand's record filibuster was broken by attrition.  However, that was not a cloture-proof filibuster.  To the contrary: that was a lone filibuster, against a mild Civil Rights bill that the Dixiecrats had decided to accept.  It has nothing to do with cloture-proof filibusters.  Overall, her discussion with Jon Stewart, unfortunately, proved only that she doesn't know what she's talking about.

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 (unless some of the GOP Senators have a flair for that sort of thing...it is possible that they would get giddy at 3:00 AM and say something goofy, the way that Jerry Lewis used to on Labor Day, but I'm not seeing a whole lot of potential for that among our current set of Republican Senators).   As I've said, Republicans wouldn't fill the time reading recipes or from the phone book  They have large staffs, and an nation full of professional and amateur conservative wordsmiths.  They would have plenty of material to use.  (There's some question about whether the minority would actually have to talk at all, or whether they could simply conduct endless quorum calls.  It doesn't matter: there wouldn't be any shortage of Senators eager to make a name for themselves by talking.  What is true about the quorum rules is that they are more onerous on the majority than on the minority, but that's not the reason that the majority would fold first; it's because they are the ones with other responsibilities and other agenda items).

Now, it is true that if the minority couldn't keep forty-one Senators on board that they could be defeated.  However, that seems highly unlikely in general, and certainly not for a high-profile item such as health care reform.  Republicans have already proven that they're willing to delay appropriations for troops on the battlefield, and they've already proven that they're willing  to engage in pure, pointless obstruction, when they forced the reading of an amendment during Christmas week even though there was actually nothing at stake in moving the final vote back a few hours.  An actual filibuster, with Republicans talking for the CSPAN2 cameras, wouldn't be a problem at all for them -- unless, of course, the item they were blocking was popular among their constituents.  But if that was the case, they wouldn't be blocking it in the first place! 

So, I'll repeat: there 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.



Now, Greg Koger did talk, in his excellent series over at the Monkey Cage, about Senators' choices about how to spend their time, and the pressure that puts on using the Senate floor efficiently. This, however, is really about a slightly different topic, which is how Senators can use delay as a weapon even if they don't have forty-one votes.  I think that's been most visible in this Congress in the terrible difficulties the Senate is having in confirming President Obama's appointments.  As many have noted, those appointments that have finally reached a vote often win by very large majorities.  It affects bills, too, however.  And here I think the critics have a good point: Harry Reid could get more done if he expanded the amount of floor time, and showed less respect for holds when there's an available supermajority.  Republicans could fight back with delaying tactics (such as forcing the clerk to read bills in their entirety, forcing multiple cloture votes when that's an option, and using every minute of pre- and post-cloture debate time), and ultimately the number of hours is capped, but nevertheless I think the Democrats should have been, and should still be, far more aggressive about those items for which they do have sixty votes.   

One last time: if the majority has the votes for cloture and allows obstruction to kill a bill or a nomination, one can fairly criticize the majority for caring more about other things than for the failed measure.  If, however, the majority does not have the votes for cloture, and there is minority determined to conduct a filibuster, then forcing the minority to actually hold the floor cannot -- will not -- break the filibuster.  Claims otherwise are just not correct.