Against Merkley's Talking Filibuster Proposal

Jeff Merkley yesterday put out a long memo to his colleagues describing his talking filibuster proposal. Note that this is not the entire Merkley/Udall proposal, and there are other reform proposals circulating among Democrats, too. But just looked at in isolation, and assuming that there are no additional details beyond what he's explaining, I would conclude two things.

It probably won't do what he wants it to do.

In the unlikely event it does do what he wants, it's still on balance a bad idea.

Merkley's plan kicks in only in certain cases: when a cloture vote has been held, and cloture fails -- but cloture achieves 51 votes (that is, there's a majority, but not a big enough supermajority to beat a filibuster by vote). If that situation occurs, then what Merkley does is, as far as I can tell, change the rules for debate in order to relieve the majority of the burden of remaining on the Senate floor during extended debate. In normal debate, there are a variety of maneuvers a Senator can use to put the Senate on hold, generally requiring the majority to show up (for a quorum call, for example) to force debate to continue. Merkley would change that, so that during any extended debate the minority would actually have to keep talking.

That's it.

Okay, to back up: Merkley's stated goal, and one that I agree with, is to preserve the possibility of successful minority filibusters for cases in which a large, intense majority opposes something -- but to eliminate the standard filibusters on everything which have created a 60 vote Senate.

Would this reform achieve that goal?

Remember that the Majority Leader right now can force a talking filibuster, either with or without a cloture vote, but they haven't done so as a regular procedure for decades.

So what would change after reform (and again, we're only talking about one reform plan out of several) would be that talking filibusters would force the minority Senator on the floor to be talking instead of waiting to talk and filing motions...while the burden for the majority would be considerably reduced, from currently having to keep enough Senators close to the floor for votes and quorum calls to only having to keep two Senators on the floor -- one to preside, and one to be ready to take advantage of a lapse by the minority.

The additional burden on the minority is, in my view, very slight. Sure, talking is harder than just sitting there...but it's really not much of a burden for politicians (supported by large staffs, and beyond that by conservative bloggers and talk show hosts and the rest) to find something to say. Remember, they would be -- as they would be now -- free to tag team; they just have to schedule one person to be on the floor, ready or at least willing to talk, at all times.

The reform does, however, make a big difference in its demands on the majority; keeping two people available is a whole lot easier than keeping practically the entire caucus available.

So the question becomes whether it was that burden on the majority which makes talking filibusters a bad idea for the majority under current rules. I'm confident that it isn't. The need to hold the Senate floor indefinitely just doesn't seem very difficult to me, and the biggest drawback for the majority -- that talking filibusters chew up valuable floor time -- is unchanged. Put it this way: if all it really took for majorities was to stick around until a filibuster was beaten, then wouldn't they have done so, at least occasionally, in the last several decades? There must have been at least a few times that an intense majority opposed a large but relatively indifferent minority; wouldn't they have at least tried? And yet they haven't. Which is, in my view, extremely strong evidence  that the burden on the majority to stay near the floor is irrelevant to the reasons the majority has not forced talking filibusters.

Merkley talks a fair amount about how increasing the burden on the minority by actually forcing them to do a talking filibuster instead of the current passive procedure would be a strong disincentive for filibusters when the minority is not intense. However, what I think he's missing is the repeating nature of the filibuster game. Republicans might not have a strong incentive to mount a talking filibuster in a one-shot opposition to, say, a single executive branch nominee (remembering that none of this matters except when the minority has 41 votes opposing that nominee to begin with in order to trigger Merkley's rule). However, they would have a strong incentive to prove early on that they can back up any 41+ cloture vote with floor action if needed. Thus all members of the minority would have an extremely strong incentive to treat the very first talking filibuster not as a battle against a specific bill or nominee, but as a test of their conference's strength. A test that they can fairly easily pass.

It's not going to work.

I also said at the top that it's a bad idea even if it was able to work. That's because if it works, it does so by lowering the burden on the majority. And yet that seems backwards to me. One can make a pretty strong case that an indifferent majority should lose to an intense minority. This proposal would work, if it did, primarily by empowering indifferent majorities, those not willing to outlast a filibuster by staying on the Senate floor.

Now, there is I suppose an answer to that, which is that under current practice minorities don't actually have to hold the floor at all, even if it technically could happen; under the talking filibuster they would be forced to, and would therefore only filibuster if they were intense enough to do so. But still...if talking filibusters were simply a matter of intensity, then both majority and minority intensity should count.

The bottom line here remains that the supposed virtues of the talking filibuster solution seem to rest on the things I didn't talk about here but Merkley does in his memo -- the romantic but false notion that what actually happens on the Senate floor will, Mr. Smith like, produce a landslide of publicity for or against whatever is being debated. I just don't think that the Senate works like that at all. Sure, outside pressure can affect Senators' votes. But it just seems extremely unlikely that the additional pressure -- if any -- generated by the talking filibuster would do that. More likely, the additional pressure generated from that sort of thing would be partisan in nature, and therefore tend to keep the minority going.

As I've said before: if the goal is to find some rule or set of rules which make filibustering possible but difficult, then requiring a talking filibuster as part of it just makes it harder, not easier -- both because the actual operation of a talking filibuster hurts the majority (by using valuable floor time), and because it's just an additional obstacle to what is in any case a very difficult rule-drafting problem. Perhaps it's possible anyway, but Merkley's current proposal doesn't appear to do it.