Thursday, December 13, 2012

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.


  1. JB, someday you'll have to do a post explaining (to me, at least) why "an indifferent majority should lose to an intense minority." The Southern Democrats opposing civil rights were an intense minority; the opponents of the Law of the Sea (a treaty endorsed by everyone from the navy and the chamber of commerce to environmental groups) were an intense minority; the Nazis in Germany were an intense minority. Why do they deserve to win?

    1. Agreed.

      I don't think an "an indifferent majority should lose to an intense minority." And I certainly don't think an intense majority should be blocked by a minority, however intense.

      I do think the an intense minority, on any particular issue, should have an opportunity to convince a majority that they are wrong or misguided. The minority should have the opportunity, through persuasion, or through the introduction of superior alternatives or amendments, to sway their colleagues to their point of view.

      That's the context in which I think preserving actual debate time in Senate is valuable. But I'm also open the argument actual Senate floor debate is pointless and persuades nobody these days. And if that's the case then the rules should support stronger majority rule.

    2. Yeah, I have to do that post.

      I would say, however, that the Nazi example isn't going to be a strong one, nor is the civil rights one. On the latter: surely those who supported civil rights were an intense majority, or at least African Americans were. No one thinks that intense majorities should lose to intense minorities, certainly not regularly.

    3. The argument I would make is utilitarian. If winning is worth, on average, $1 to the winners, and losing costs, on average, $2 to the losers, and we assume $ = intensity/utility, the tipping point would be 2/3rds in favor.

      I don't think the argument is all that hard to make. Dahl, in fact, has to go to great lengths to argue against it in Preface to Democracy. I think Dahl makes some really good points. But, the moment we allow for the notion that somebody's opinion maybe should count for more than someone else's, the intense minority argument isn't hard to sustain.

      Now, COMPOUND this by the fantastically inegalitarian nature of representation in the Senate, though...and we have a whole other problem. Now, intense minorities of something like 15-20% of the US population, if distributed in the right states, completely bottle up the will of the other 80%. This isn't the case now, but it IS true that one side's interest has more representation in the Senate than they deserve by population, and it's the SAME side that is the intransigent minority. So, I think there's ample reason to question the wisdom of applying the general principle to our unrepresentative Senate. But the principle, while not necessarily one I'd agree with, is defensible.

    4. Matt, I'd like to see you apply that equation to an actual floor debate.

    5. Johnathan - But, even granted that the civil rights example was a case of intense majority vs. intense minority, the minority still won! Even back in the late 19th century before we had a 60 vote Senate.

      And I don't think we should grant it; the political will to enforce civil rights on the South lost a lot of steam after 1876.

  2. Jonathan, I agree that making the minority talk is not a big requirement. I also agree that there are potential upsides for conservatives to grandstand for the right-wing media market.

    But, you also have to concede that some work, even if not that difficult, is more than no work. Senator time is also precious. Senators on filibuster duty cannot manage their staff; they cannot talk to donors privately; they cannot raise money; they cannot write laws; they cannot attend committee meetings; they cannot interact with their families. They must stand and talk. These men are over sixty-five years old, mostly, and if they say something stupid because they are tired, their opponents will have a free video of it.

    Certainly they will tag-team. Certainly they will filibuster the first item on the agenda. But that first filibuster will end, and the Senate will move on.

    I think that the key is forcing the men themselves to make the effort. Because they can't keep it up for two years.

  3. One point: You often criticize Reid for not stretching the Senate schedule and creating more floor time for important matters. Wouldn't this proposal allow the Democrats to keep the Senate open during weekends and recesses with only Ben Cardin and Tim Kaine there, along with all the Republicans? Reid can make the lives of Republicans a living hell by never allowing them to recess, and forcing them to talk through Easter, Christmas, and August recess. As soon as they leave the floor, Kaine, the chair, says they can move on to the majority-cloture and schedules the vote for the first day the caucus is back in town.

    Is this a plausible outcome?

    1. The current Merkley proposal does not require the whole minority to stick around; just enough to keep a steady supply of a single talking Senator. And it has built-in exceptions for August, etc.

      Either way: it's productive Senate floor time that Reid could have used in 2009-2010. Adding extra floor time for Republicans to talk doesn't change anything.

    2. So even if Reid could keep a filibuster going during August recess, each member of the Republican caucus would only be required to speak for about 17 hours total over the course of the month? And they can spend the other 30 days back home?

      I think this proposal is like giving a dying man in a desert a glass of liquid. He's so thirsty that anything seems better than nothing.

    3. I don't see anything that makes me believe in the concept of "productive floor time" in the Senate any longer. If the Republicans are going to oppose EVERYTHING, and filibuster every single bill or nomination, then floor time is worthless to both parties.

  4. Perhaps it is wishful thinking but... Isn't the current invisibility of the filibuster a real problem?

    James Fallows thinks so, and he is no fool. He repeatedly criticizes reporters who do not describe a filibuster as a filibuster, so normal people don't know why nothing passes and the President is so ineffective. Fallows thinks the reporting matters, and intuitively so do I. Obstruction becomes obvious and marginal Senators start losing races they otherwise would win, or at least fearing they might.

    Certainly the Republican base will enjoy the C-span, and senators love to bloviate, but they will appear obnoxious and obstructionist on the evening news.

    JB's point that floor time is precious seems well countered by Kal. Weekends and recesses are not precious, the minority is burdened more than the majority, and the bad publicity (maybe I'm wrong about that, I hope not) will wear the Republicans down until they no longer casually filibuster practically every bill. Isn't that the point?

    Finally, the Republicans don't like it one bit. If it will matter so little why do they seem to care so much?

  5. The current GOP Senate caucus is so extreme and partisan that they will always be an "intense minority." But why should the moderately liberal Democratic majority therefore be thwarted in passing legislation or confirming nominees unless they can somehow find 5+ Republican Senators to join them on a given vote?

    1. But they aren't, really. There's plenty of stuff they don't care about; even plenty of stuff that they don't vote against. A big part of the problem is how hard it is to move those things that *do* have 60 votes.

      But, of those things they vote unanimously or close against: yeah, a good rule would either force them to choose priorities and/or give the majority an opportunity to beat them when the majority, too, is intense.

      Remember, I'm for simple majority cloture on all exec branch nominations, and a yearly Superbill that would be able to pass by majority vote. The only area where I do think the minority should get quite a bit of extra protection is (lifetime) judicial appointments.

  6. I do think that the talking filibuster would create problems for the Senate because media reporting would have to focus on the tremendous waste of time as opposed to what they focus on right now, which is nothing.

    1. But is that wishful thinking? Why would the media suddenly start focusing on this aspect of the Senate? Putting one's faith in the mainstream media is not the vote of confidence for the talking filibuster proposal that many people seem to think it is.

    2. This comment has been removed by the author.

  7. Harry Reid keeping the Senate in session 24/7 and through recesses. A major Party has to keep Senators on the floor and talking.

    Those are good news stories.

    Stories about the present system of invisible filibusters and 60-vote Senate abstractions are not good new stories.

    Reporters like good stories with a human element.


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