Saturday, January 30, 2010

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.

27 comments:

  1. I'm not questioning your conclusion, but I have two questions:

    1. Is the rule 60 votes or 60% of the number of votes taken? If 20 members of the majority are taking a bathroom break, would 48 (60% of the remaining 80) be sufficient to invoke cloture?

    2. Even if they couldn't break the filibuster, wouldn't the press be all over the fact that something so rare was in progress, and would that make the public (of which less than 40% know how many votes it takes or that 0 Republicans have voted for HCR) more aware of what's going on and perhaps shine an uncomfortable spotlight on the minority? Wishful thinking on my part, I know.

    Brian

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  2. Brian,

    It's 60 votes -- three/fifths of all current Senators. So, no dice on that one.

    As far as the p.r. point: yes, a live filibuster would generate some publicity, which the majority might want if they believed that their issue is popular. The actual floor debate, however, in a true live filibuster is completely controlled by the minority, so any live network coverage (plus CSPAN2) would be of the minority talking, and making their points. As I said above, the minority would be blocking the bill in the first place if they didn't think it was a good move politically, and it's easy to think of things that might be popular overall but unpopular with the people who forty-one Senators care about. So as a p.r. move, yes, but as a way to break a filibuster, no.

    (I should note: what the majority has actually done once in a while isn't to stage a live filibuster, with the minority doing all the talking. Instead, they keep the Senate in session overnight, but keep time divided. Similar publicity effect, without the bad things for the majority of a real live filibuster).

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  3. I guess I do question your strategy. You write:

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

    Why would there be a humiliating defeat? Ever.

    It seems to me that Democrats can argue to the general public that the Republicans are 'sore losers.' That everyone knows how you pick sides in sandlot baseball and that majority wins.

    Yes the government needs to happen and the Republicans will in fact be the ones who obstruct.

    Moreover, the sense of the nation is that people do want X -- health care by a decisive majority.

    I guess that I just don't see the equities and politics with anything but the Democrats.

    People admire force and if anything the Democrats lose strategically by NOT calling the Republican's filibuster.

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  4. It will be a defeat on the actual bill (or nomination) they are trying to pass. They might win the public relations battle...but passing legislation isn't a public relations game.

    On health care, Republicans would be obstructing even if the public was heavily for the bill and against the filibuster on principle, because Republicans are mostly responding to Republican primary voters, who are strongly against the bill and won't be convinced otherwise by...well, by anything.

    (And, FWIW, there's no guarantee which way the public relations battle would go).

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  5. FWIW and I guess I am not making my point: why would you expect a defeat at all?

    Do you really think it's a sure thing that the Democrats will fold because the Republicans are the ones who are holding up the business of government? Can the Republicans really hold up a minority position for a month or two? After a majority has just won a decisive majority? Why are you so sure that the Republicans will hold?

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  6. David,

    The Republicans (or any minority) will hold because their position is popular with the constituents they care most about, and they have no other incentive to stop. The Democrats (or any majority) would give up because, while their position might be popular with their own constituencies and overall, they also have other priorities and responsibilities. And first of all, they'll want to fulfill those other priorities -- and second of all, people will blame the majority if they don't.

    By the way, it's similar to why the Republicans folded in the government shutdown in 1995-1996.

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  7. I won't belabor the point but I wonder if the analogy is flawed.

    You state that "...people will blame the majority if they don't."

    It seems to me the Republican failure was a failure not because the public blamed a majority but simply because an identified group held up the machinery of government.

    The fact of majority was not the operative action -- the operative action was that the Republicans initiated the "strike." The fact that the majority, which did in some sense represent a genuine majority of the people via the House, cut no ice and is more damming.

    In our current situation the Republicans would be the group holding up the work of government -- and especially their minority status as "sore losers" -- would draw the same analogy.

    Obviously you disagree and that's fine, but I can't see that it is so certain that that the Democrats would lose. In fact there is a larger strategic matter -- being seen as wimps. It's quite damaging for the Democrats to be seen as a clear and decisive majority to let the Republicans be bullied. I would not underestimate the damage to the Democratic Party as losing face.

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  8. David,

    I probably didn't help by bringing up 1995-1996, because the argument you are still making here is about the overall public reaction to a live filibuster. Again, what matters to the minority party isn't the overall public reaction, but the reaction of the constituents they care the most about. And as long as the GOP is in the minority, it's basically impossible to imagine that those people would urge Republican Senators to quit.

    However, constituencies Democrats care about would ask the Dems to back off, even if they liked the item being filibustered, because they would have other things they want to get done, and that Dems could deliver on if they weren't forcing the filibuster.

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  9. You assume that the minority can't be broken. Why?

    I think once people's unemployment checks stop arriving, or government offices start closing, and doctors and hospitals stop getting paid, and troops on the battlefield stop getting funding, people will want those issues addressed, which would require ending the fillibuster, correct?

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  10. There's one other angle you haven't considered. Suppose Reid and the Dem. leadership committed themselves to forcing a live filibuster not once, but *every time* the Rethugs wanted to stall, say, over the next six months? Possibly in that case, the Rethug obstruction would be clear to all, the Rethugs themselves would be embarrassed or at least lose enthusiasm for endless filibusters, and the tactic would cease to be used so routinely.

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  11. Any analysis that ignores the political theater aspect is short-sighted. Only 26 percent of Americans know it takes 60 votes to break a fillibuster. The mainstream media has been happy to pass along the meme that the Dems can't get anything done even with a large majority without explaining why. The cots would actually draw coverage to the issue in a way that virtual fillibuster's can't.

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  12. Anon 10:52,

    You're right that people don't know about the filibuster, but I think you are wrong that the cots would change that. There's an excellent chance that most people would react to it by blaming both parties (which is bad for the majority party)...people don't like Washington squabbling. And lots and lots of people would just pay little attention to it, as they've been doing up to now. And don't forget, in a real filibuster you're giving the other side the Senate floor, 24 hours a day, to give their message.

    Anon 8:05

    Actually, on the Bunning filibuster, I think the Dems just have the votes for cloture. But Bunning plus a few others are enough to hold out and force a cloture vote, and they're pretty immune to national polls (although perhaps not to pressure from other Republicans; this one is a p.r. fiasco for the GOP, I'm assuming).

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  13. So let me see if I understand you... The Republicans are currently bogging down virtually everything using the threat of filibuster so the majority can get almost nothing past. If the Democrats force a live filibuster then they'll have to give up on it almost immediately so that they can, wait for it, go back to getting almost nothing done? Doesn't sound like much of a reason to cave.

    If the Republicans had had to filibuster for six weeks straight a year ago then they'd be looking very hard at whether they wanted to try that again. And the Senate would probably have 'achieved' about as much as it actually has in the last year. And what with having to stay up all night, not getting to spend as much time raising money, with their families, pages, mistresses, constituents at least a ocuple of those senators would be revolting. As it is they get to make the threat, and achieve their goals, for free.

    As the Republicans are threatening filibusters on pretty much everything the Democrats almost get to choose the bill the fight is over. Tack on a nice amendment, like getting troops Dragonskin armor (which should have been done long since imho), then blast the Republicans every day of the filibuster with tales of soldiers wounded because they don't have the best armor available.

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  14. It seems that another advantage the majority party has is that when its leadership calls the bluff of the minority on a filibuster, one or two majority party senators cannot end the filibuster. HOWEVER the minority MUST remain committed to gumming up the works. If even ONE minority senator from a 'bluish' state (think Massachusetts) is put in an untenable position by the filibuster, he can cave and end it. Mr. Bernstein's point that there is no way for the majority to win if there is "a determined filibuster conducted by multiple Senators and supported by at least forty-one Senators." This is self-evidently true, by definition. HOWEVER what we're trying to say is that there are some instances where there will not ALWAYS be a solid, determined 41 minority senators who absolutely will NEVER have even one senator change his mind. Mr. Bernstein, if we grant you YOUR self-evident proposition, will you please grant us the self-evident proposition that it is possible that one senator could cave??

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  15. Let the minority talk "forever" on CSPAN... Then the majority can get on MSNBC, CNN and every other news outlet that will allow them on (FOX notwithstanding in the case of this minority - they'd run the fillibuster nonstop as well, live, to their existing audience of conservative drones). While the Republicans are droning on about "why I love America" and "why Obama is really a Socialist trying to destroy this great nation", the Dems would be non-stop slamming them for (their very real) obstructionism. Which network has the larger audience, CSPAN or CNN/MSNBC? And let's not forget the comedic value of such a move to Stewart/Cobert.

    Seems to me that the fear is allowing the minority to talk endlessly on subjects they control. So what? Last time I checked, very little public opinion changes are made on CSPAN or Fox... Not enough people under 75 watch CSPAN, and Fox's viewers are more or less already decided on what they believe. I'd certainly give MY Senator or Rep a pass and vote for re-election if they were stalled on other legislation because they were calling this particular bluff.

    I say get something DONE - if the vote comes up short well, then, that's Democracy in action. I wouldn't like it, but that's how it goes. IMHO the fact that the minority want to forestall a vote says that they think it will go against them...

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  16. Just to clarify my point...

    1. On the Bunning filibuster in particular, a "live" filibuster isn't necessary to break Bunning; the Dems are going to have the votes for cloture. The question on substance is which method is quicker, and it's not clear to me that forcing a live filibuster would be quicker. I tend to believe that Harry Reid is in a better position than we are to know the answer to that.

    2. On the p.r. merits of forcing a live filibuster...as I said in the piece over at the Dish, I can see arguments either way on that. Just remember that, at that point, it's a pure question of spin, not substance. FWIW, it seems to me that the Dems are winning the spin on this one as is; it's not clear to me that forcing a live filibuster would change that.

    3. To anon 5:45...as much as it seems that the GOP is stopping everything, that's not actually true; over six weeks, the Senate passes lots of stuff. Even if it would be a spin win for the Dems to shut everything down for six weeks with a live filibuster, IMO it wouldn't be worth the substantive trade-off. And, again, I'm not sure they would win the spin battle.

    And...of course it's possible that a Senator would cave, but it's not clear at all to me what the logical case is that a live filibuster would make that more likely. Given that actually doing it is far more onerous for the majority, I think the logic of the situation is that it's more likely that the Dems would start losing support.

    Again, that doesn't apply to the Bunning filibuster, which doesn't have 41 votes to begin with.

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  17. Do you have a solution for this filibuster gridlock? Udall has proposed eliminating the filibuster by majority vote at the beginning of the next congress. Would this work?

    Jonathon, you have good points but you have not convinced me. The reason I am not convinced is that the Filibuster must go and one way to do that is for the Democrats to filibuster the filibuster by forcing the Republicans to abuse the filibuster. The Republicans have found an effective way to disenfranchise those who voted for Democrats in 2008. Not only is this tactical maneuver unfair, the Republicans I think are doing real damage to the republic – why would anyone want to vote anymore if the opposition can filibuster everything?

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  18. You use the wrong metric for whether the tactic "works." It doesn't have to break the delay, only shame the GOP.

    If the Republicans were forced to stand there and talk, it would make absolutely clear who is holding up the process. Most people don't understand much about cloture rules and process. But when the news is full of these gasbags reading the phone book, the fault for the gridlock becomes clear.

    We saw with Shelby and now with Bunning that these tactics bring into the spotlight who exactly is bringing things to a grind. And how has that gone? We have Bunning whining about missing a basketball game, screaming at reporters to get off his elevator, flipping off a producer, cursing on the Senate floor. And all of it making him and the GOP look childish and obstinate, to the outrage of all.

    More of that, please.

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  19. Anonymous,

    What makes you think the GOP feels shame? Bunning a) is very popular in his home state and they don't see him as an obstructionist but as a hero standing up to the evil socialist Democrats, and b) he's retiring anyway, so any effect shame might have on his electoral chances is irrelevant.

    But especially point a. It's not how "the public" responds. It's how Senator X's constituents respond--and if a majority of them like him standing up to the Democrats, then he's got no incentive to back down, even if the overwhelming majority of the public in every other state despised him.

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  20. If Reid has the votes to bury the bleephole Bunning, why has this gone on as long as it has? Why, then, the talk of a "compromise" between Bunning (or someone speaking for him) and Reid?

    BTW, I thought I saw somewhere in the last couple of days that the "hold" exists nowhere in Senate rules (unlike the filibuster and cloture, which do). Can't Reid, as President of the Senate, force the hold to be lifted?

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  21. Shaming them in front of the public and putting pressure on them, is what I mean. And we saw Bunning crack today. Newspapers in Kentucky blasted him, he was sticking out as a symbol of GOP obstructionism, people were becoming outraged, and few in his party would defend him. He caved having made a fool of himself and hurting the GOP's obstruction effort.

    More like that is just what we need, and forcing them into prolonged foolishness like this is the best way to get across to people exactly who is causing the gridlock.

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  22. Anon 10:47,

    It's a good strategy to highlight the unpopular positions of the other party, sure. And when the other party is divided, your party is in the majority, and the issue is popular, of course it makes sense to exploit it.

    The question here, however, is whether a live filibuster makes sense (1) as a tactic to pass something, and (2) as a good gimmick to exploit the issue. That Bunning caved doesn't seem to have much to do with that (I haven't read any backstory yet, but either party leaders got to him, or party leaders got to DeMint and the others who were willing to help Bunning, in which case, if it was only Bunning, then forcing a live filibuster *does* make sense.

    As far as a live filibuster being good for spin, I still don't particularly see it; as far as I could tell, Bunning and the GOP took a pretty fair sized hit for this thing without a live filibuster. I'm very skeptical that it would have received a lot more attention with one (especially over the weekend, with the Olympics still going on).

    Peter,

    Yes, Reid had the votes, but Senate rules do allow one stubborn Senator to force about a week's worth of delay even if the majority has well over 60...I'm not sure whether Reid played it wrong or not, as far as whether he could have finished the thing by Sunday. Your right about the hold. It's basically a threat to filibuster, and so if Reid just ignored holds he'd have to get cloture, and even then it could take a week (not saying what he should do, just laying out the rules).

    James,

    Good points.

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  23. "it's not clear at all to me what the logical case is that a live filibuster would make that more likely. Given that actually doing it is far more onerous for the majority, I think the logic of the situation is that it's more likely that the Dems would start losing support."

    Given a popular piece of legislation, perhaps tailored to appeal especially well to taregted Senators' constituents, I'm inclined to think two or three days of the minority flapping their lips would render those Senators vulnerable to pressure. When filibusters don't stop action from happening on Capital Hill, the general public more or less assumes that the idea was rejected and Congress is "moving on", not that the bill is in limbo not getting voted on.

    Days of stonewalling live would highlight the process that is only in play invisibly at the moment. Which bills would benefit from a forced filibuster? Tons of polling data gets collected, it's a second career for Senators. They'd likely pick a few choice pieces that could pry Brown or Grassley loose.

    The ghost of Tom DeLay holds sway in the GOP, but Dems have done almost nothing to try to exorcise it. The law of inertia applies.

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  24. It’s great to see good information being shared and also to see fresh, creative ideas that have never been done before.

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  25. "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."

    There's your mistake right there: this is irrelevant, because there are not forty-one determined-enough Senators.

    Republican Senators are obstructive and good at troublemaking, but most of them *have no stamina*.

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  26. they keep the Senate in session overnight, but keep time divided. Similar publicity effect, without the bad things for the majority of a real live filibuster).

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  27. BTW, I thought I saw somewhere in the last couple of days that the "hold" exists nowhere in Senate rules (unlike the filibuster and cloture, which do). Can't Reid, as President of the Senate, force the hold to be lifted?

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