Wednesday, March 6, 2013

Rand Paul Talks

So we're some number of hours into Rand Paul's talking filibuster of the nomination of John Brennan for Director of the CIA. Paul has been joined by a few Republicans and by one Democrat, Ron Wyden. Everyone agrees that 60 or more Senators support the nomination, so at this point it's just a case of how long Paul wants to keep it going; presumably it ends when he's done, although it is possible that the others could tag-team and keep it going indefinitely and thus force a cloture petition to end it.

As usual, these things draw a lot of attention from the political press, which these days means that it sort of eats up twitter (well, at least for those who have politics-centered twitter feeds). It also is drawing a lot of attention from filibuster reformers, who (as Ezra Klein does here) are praising it as the good kind of filibuster. Josh Marshall says "This is a great example of why the talking filibuster is exactly what we need."

I'll say a few things about that. One is that we don't actually know right now how long this will go on. If it continues for a week (assuming no cloture petition), would these filibuster opponents still love the talking filibuster? What if Paul and his group did this once a week? Is it still a good thing?

What's more, as far as this being in the true spirit of filibusters as opposed to normal "silent" modern filibusters: I disagree. The spirit of a filibuster is to attempt to defeat something the majority wants by delay or the equivalent of delay. One might say that it's in the best spirit of the Senate for individual or small groups of Senators to use their rights under Senate rules to call attention to something, but that's not necessarily by filibuster.

Indeed: it's fairly likely that Paul's filibuster drew attention today away from far more substantive action on the same issues: Attorney General Holder's grilling from the Senate Judiciary Committee. Granted, it's hard to tell; perhaps Paul is raising the issue to a generally higher profile (and, at least at the NYT home page, the attention is on Holder, not Paul).

But it's worth remembering that "Congress in session is Congress on public exhibition, whilst Congress in its committee rooms is Congress at work." Good reporters will keep that in mind and assess how "Congress at work" is doing -- and take it seriously -- rather than being overly impressed at how well they do the public exhibition portion of it.

The last thing is that today's live filibuster shows again just how easy it is to hold the Senate floor for an extended period. I continue to believe that Jeff Merkley's talking filibuster suggestion is not only misguided (because, in part, it puts more emphasis on that public exhibition thing) but just wouldn't work. Essentially, Paul is willing to do this because he believes in the cause and because it plays well with his constituency. A talking filibuster showdown under Merkley would mean that every single Senator in the minority party would be fighting, the very first time they did this, for their future leverage in the Senate -- and surely that would play extremely well with the constituency they care most about.

Marshall believes that the current types of filibusters are invisible and therefore cost-free for the minority party in terms of public opinion, but that "A minority that is doing constant filibusters of everything — and by that I mean, visible filibusters — is going to take a public hit pretty quickly." I just don't see that. Sure, if you have a twitter feed like mine and if you watch C-SPAN, and if you support the majority party, then you'll be annoyed by a talking filibuster and angry with the minority party. But if you support the minority party you'll cheer them on. And most people will barely know it's going on, and at best will just be reminded of how much they hate Congress. Which, technically, is good for the party with fewer incumbents -- the ones who are doing the filibustering. Not to mention that anyone who does turn on C-SPAN today is getting a steady dose of Rand Paul's views, not the majority party's views. I see no reason at all to expect a public hit from talking filibusters.

All that said: I have nothing at all against what Rand Paul is doing today, and I think it's fine that Senate rules allow it. But don't be fooled into thinking that this is the Senate at its best; the Senate at it's best is doing real legislating and real oversight, not making speeches. And to the extent that Paul is reinforcing the romantic notion that talking filibusters are some sort of ideal, it's hurting the prospects for solid, effective Senate reform. Which remains, alas, badly needed.

19 comments:

  1. I'm glad someone took on that Marshall post; it seemed completely wrongheaded to me, especially the part about the minority party taking a "public hit," for exactly the reasons you say.

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  2. I see that you ignore Marshall's next sentence, "There’s also a cost just in terms exertion for the senators in question. How often do you want to do these marathons?"

    This seems clearly true to me, especially since, well, there were far fewer filibusters when a talking filibuster was required.

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    1. This seems clearly true to me, especially since, well, there were far fewer filibusters when a talking filibuster was required.
      When was a talking filibuster ever "required," as opposed to selectively deployed by demagogues like Thurmond to demonstrate the depth of their commitment to the cause?

      And it's a hoary cliche for a reason: correlation does not imply causation. Even if talking filibusters were more common as a share of overall filibusters in the past, and even if during that same time period filibusters overall were less common, there are just a ton of confounding factors that make it impossible to say that talking filibusters caused filibusters to be rarer. And even more confounding factors that stand in the way of the conclusion that it was the exertion factor, specifically, that caused filibusters to be less common. Among the biggest: partisan incoherence up until about the early 1990s. The existence of opposition caucuses with no real incentives to compromise is a huge change from the political status quo of the early and middle 20th century.

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    2. This is all true, but to what extent does the unwillingness of opposition caucuses to compromise derive from the current debate rules? I'm certainly not convinced that a talking filibuster would work, but it seems like it would at least be worth giving it a try.

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  3. There are certainly non-zero "exertion" costs to Senators for a talking filibuster. Even if the Merkley rules were adopted, however, to put the burden on those Senators, I'm not at all convinced that the burden would be severe, at least not in the relevant case in which 41 or more Senators are involved.

    And of course there are costs to the majority, too. Floor time is scarce.

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    1. I certainly wouldn't disagree with this. But disparaging the talking filibuster led us instead to the nonsense nothingburger of the Reid-McConnell agreement, so it seems like it might at least be worth giving it a try.

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  4. Senator Rand Paul's DC mailbox is now full. Please let him know we appreciate and support the filibuster through his facebook page!

    https://www.facebook.com/SenatorRandPaul?fref=ts

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    1. Also, ask your own Senator why he or she isn't up there with Rand!

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  5. I think Klein and Marshall are praising Paul just as much for the substance of Paul's filibuster. I doubt they would be positive if he were to have a talking filibuster related to Obamacare.

    I don't know if Paul's action is good for the Senate as an institution but I think it is good for the GOP. It needs to move from the Bush era national security policy and he is the only GOP Senator willing to try.

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  6. I like Roy's take on Paul's actions today, yesterday and in the future. Take a look: http://alicublog.blogspot.com/2013/03/standwiththatassholerandpaul.html

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    1. Yikes, if that’s how he treats people when he agrees with them…

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  7. "And most people will barely know it's going on, and at best will just be reminded of how much they hate Congress. Which, technically, is good for the party with fewer incumbents -- the ones who are doing the filibustering."

    Public dislike of Congress in 2012 doesn't seem to have helped the Senate Republicans. (Yes, yes, I know all about Akin and Mourdock. But even if the Republicans had won both IN and MO they would have had a very poor year in the Senate, merely breaking even in a year when the map should have been very favorable for them.)

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  8. JB, isn't this a blow to your thesis that the talking filibuster is no different (or worse for the majority) than the silent filibuster?

    This "real" filibuster is obviously quite different from the no-effort-supermajority requirement.

    Paul, and his allies, were not able to keep it going forever. He was able to slow things down, draw attention to his argument, and take a stand on a issue he regards as important. But he wasn't able to thwart the will of the majority. The nomination will still (presumably) go through.

    Unlike the silent filibuster, this real filibuster feels like good, legitimate, and totally different thing.

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    1. No. Paul never intended for this to be a perpetual filibuster in order to really stop the nomination; he basically did what he wanted to do.

      Also: a one-Senator filibuster really can't go on forever. But a 41-Senator filibuster certainly can; in fact, a twelve-Senator filibuster can.

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    2. Hmm...

      Well, I assume Paul would really prefer to stop the nomination if he could.

      How many other senators will vote against cloture? 20? 30? Doesn't this suggest that the thresholds to vote against cloture, and the thresholds to actually take to the floor and try to really filibuster it death are very different thresholds?

      If actual-hold-the-floor filibustering is so painless why don't we see more of them by groups of 20 or 30 that would otherwise lose?

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    3. I agree with swain. It is obviously different. Read Fallow, Read NRO Read Sullivan. It feels different and feel counts in politics.

      Why disparage the "exhibition" side of Congress. The "work" is not all done behind closed doors, the public sees (and is influenced by)the exhibition, so part of the "work" is the exhibition.

      JB, I have no twitter feed and never watch C-Span, yet I was aware of this filibuster within a couple of minutes on the web. So were some of my co-workers.

      Senators are actually arguing on the record about something important. We don't see that much, it feels good to a lot of people, and it is big on the big political blogs, and those reach millions of people who follow politics but are not junkies.

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    4. Thomas Wittman gets it exactly right. I suggested the same in a post I just wrote over at my place. Can you imagine how silly it would be tell men like Daniel Webster, John C Calhoun, or Henry Clay, "don't be fooled into thinking that when Daniel Webster replied to Hayne this was the Senate at its best; the Senate at it's best is doing real legislating and real oversight, not making speeches."

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    5. Look, as I said, I have nothing against what Paul did. Yes, it's a part of what the Senate is supposed to do. But I'll stand by what I said. Congress is much more than a legislature that discusses the great issues of the day; Congress actually can do something about them.

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  9. The reason painless filibusters succeed is that the Majority simply shelves the issue until the filibuster is broken or the nominee withdraws. If the Minority were continually required to have 41 votes present to block an otherwise non-controversial judicial nominee, their enthusiasm for the tactic would wane.

    In other words, once Senators miss their fundraising dinners to waste floor time on filibusters, the opportunity cost increases for the Minority. It's worthwhile for important issues, but not for blocking the Under-Secretary of Blah Blah or a highly qualified Appelate Court nominee.

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