Friday, November 13, 2009

Why "Real" Filibusters Don't Happen

Greg Koger, party and filibuster scholar, gets interviewed by Ezra Klein on a great subject. As Ezra says,
Whenever I write about ending the filibuster, the same question arises: Why doesn't Reid let the Republicans go at it? If you can't end the filibuster, you can at least make sure that the minority actually has to talk for weeks on end, as opposed to simply threatening to do so.
Greg explains that attrition -- the strategy for beating a filibuster by waiting out the minority -- just doesn't work under Senate rules. I'm afraid the interview isn't quite as clear as it could be, however. Yes, it's true that Democrats don't want an extended floor debate because they have other things they want to do, but the bottom line here is that you just can't break a determined minority filibuster, no matter how many hours you give it. As Greg explains, only one Republican has to be on the Senate floor at any one time. But the real key here is that after finishing, Republicans can yield the floor to each other, indefinitely. There's no need for any one Senator to speak forever. If the Democrats insist on holding the Senate in session twenty-four hours a day, seven days a week, all Republicans have to do is to divide the day into forty-one turns (assuming that all forty Republicans and at least one Dem are for the filibuster, and all are willing to speak) and let each take his or her forty minutes, or whatever it works out to. In reality, GOP Senators would be elbowing each other out of the way for their chance to impress everyone. And by everyone I mean the Tea Party types wondering whether to Scozzafava them, plus the always-important Iowa caucus attendees; how many Senators think of themselves as future presidents?).

At any rate: while it's a massive inconvenience for Democratic Senators, the most relevant point is that it's an inconvenience that doesn't actually achieve anything.

Greg talks about the rules; I'll add some comments about the politics.

It's hard for me to see how that plays out well for the majority party, unless there's overwhelming sentiment in favor of the bill. In the old days, Senators engaged in a filibuster would read recipes or otherwise stray off topic. No need for that now! Not only do Senators have large staffs who could produce content, but there's a whole big internet available. If I were advising the GOP in that situation, I'd tell them to let conservative bloggers know that they can have their big chance for immortality: post something good, and a Republican Senator will read it on the floor of the Senate. Doesn't even have to be about health care! Excellent way to rev up the conservative blogosphere, no? Meanwhile, by forcing Republicans to perform a "real" filibuster, Democrats would transform a 24 hour network that millions of Americans get in their homes into a 24 hour Republican propaganda outlet. How is that possibly good for the Democrats? Granted, CNN coverage of the Big Filibuster would invite comments from both sides, but even CNN would probably go to the Senate floor once in a while, and each time it would be a Republican talking.

Now, Democrats can threaten to keep the Senate in session over Thanksgiving, or even Christmas, without a "real" filibuster; they can just stage an extended debate. That eliminates the need to keep 50 Dems around to avoid quorum calls (although, in my opinion, Republicans wouldn't bother resorting to that except in order to annoy the majority party; Republicans will be all too happy to just keep talking). It keeps the debate two-sided. But, of course, it also gives up on the idea of winning by attrition. Which is just as well, because Greg Koger says, attrition just doesn't work.


  1. Do you honestly believe that 24 hour coverage of teabagging rhetoric won't be to Democrat's favor? Seriously?
    Also, how many non-aligned voters watch CSPAN? I'd hazard a guess that it is in the single digits, if not close to zero. Thus, most of the coverage independents will receive will be from the cable nets and the traditional evening news, which will be quick to point out exactly how long the Republicans have held the Senate hostage.
    I see little to no downside risk to forcing the GOP to actually filibuster.

  2. The point about undecided voters and C-SPAN is a good normal times. To the extent that a major battle gets people to pay attention, however, they might well tune in (briefly, of course) to see what the fuss is about. I'd guess that a high-profile filibuster could easily give CSPAN its highest ever ratings (well, if they did ratings for it). Then there's the occasional live feed from the cable nets, and videos pulled out from it and circulated...I think quite a few swing voters would be exposed to it, over time.

    And, no, I don't think that one-sided coverage of the Republicans view of things would likely help the Democrats. Nor am I at all convinced that the media would portray the whole thing as the Republicans' fault; the most likely media narrative would, IMO, be a pox on both their houses -- which is not good news at all for the Dems.

    And remember, there's no end game. Go one week, two weeks,'s still going on. Now, the Dems are faced with a continuing question of whether to keep going or to fold.

    If you really believe that (1) public opinion would break overwhelmingly on the Democrats' side, and (2) that there are swing Republicans who would respond to public opinion...well, then it might be worth it. I think the first is unlikely, and the second is very unlikely.

    (That is, whatever deal can get 60 now is the same deal, IMO, that will be available after one, or two, or three, or twenty weeks of a live filibuster. For at least 35 Republicans, there is no deal. For Snowe, Ben Nelson, and Lieberman -- and you only need two of them -- I see no reason to believe that whatever demands they have about the bill would with at least Lieberman, I suspect that the whole thing would just make him more stubborn).

  3. Your post makes it clear that filibuster rules favor the filibusterer so heavily that real filibusters happen, but why do they never happen?

    It seems to me that few things would help the Democrats more than restoring the Senate as a 51-vote body, and that a show filibuster can set the stage for a modified nuclear option:

    First, Democrats take some particularly trivial filibuster to the floor. They announce they will resist it for three weeks but that under current rules the Republicans will successfully block the (obviously reasonable up or down vote if they show so little respect as to sustain a filibuster over such a silly issue. Say outright that the Republicans should not shut down Senate business by sustaining a filibuster on whatever the ridiculous issue is. The Republicans will filibuster, and as you note they will get airtime to spout but that picnic will sour after a week or so. As the stondoff sets in Democrats will get plenty of air time asking why Republicans are shutting down the nation's business over ridiculous issue X, why should Senate rules basically gave a free microphone to anyone who wants to block a majority vote, why is filibustering so easy with all that convenient yielding of the floor and quorum calls, etc. The Democratic theme is that the Republicans are abusing the rules, that filibustering should be reserved for passionately held issues of great moment, and should be inconvenient to sustain for long, and impossible to sustain forever.

    Then with a week to go before the announced cave to the Republican filibuster, announce that if the Rebublicans do not drop their silly obstruction over ridiculous issue X the Democrats will do a modified nuclear option. A 51 vote majority will change Senate filibuster rules so the filibustering Senator can still filibuster forever, but after he holds the floor for more than 2 hours he can no longer yield the floor to a colleague. Once he yields the floor debate is ended and an up or down vote will proceed.

    This rule change will surprise most people. They did not know that filibustering can sustained forever so conveniently. It will seen by many as closing a loophole to restore what the filibuster is supposed to be; a last resort sustained at personal cost and reseved for issues of great personal conviction.

    Any nuclear option will be controversial, but importantly this rule change is modest and reasonable, its necessity underscored by the ease with the Republicans are sustaining that ridiculaous filibuster in the here and now.

    If the Republicans cave and drop the silly filibuster rather than risking a rules change so much the good. The Democrats have scored a victory and shown that indiscriminate filibusters are no longer cost free.

    If the Democrats get the rule change the filibuster finally becomes something close to what it is supposed to be in the public mind. Filibusters no longer can be sustained forever and the Senate is no longer a 60 vote body.

    If the Republicans sustain the silly filibuster and the Democrats cannot bring off a modest rules change the Republicans win. No way around it. But the public will now know what th filibuster is and that the Senate is a 60 vote body. The filibuster then can be attacked as an electoral issue, abd blaiming gridlock on the Republicans will be come easier.

    My guess is that the reason Democrats do not do this is because they cannot get 51 votes for even a modest rules change. Senators want an over-strong filibuster becuse they know they will someday be in the minority and they prefer being weaker while in power to becoming irrelevant while out of power.

  4. It's not just the minority/majority thing, although that's important too, but it's also that Senators tend to support anything that allows each individual Senator to have influence. And, on top of that, many Senators do not want to seem overly partisan.

    Beyond that, the scenario you present is creative, but I don't know that going through with a minor "real" filibuster would really change anything. It's just as likely that people would blame Dems for wasting the Senate's time on a minor issue than that people would blame the GOP, and as I said earlier a "pox on both their houses" response is bad for the incumbent party.

  5. Why does the filibuster give individual senators more influence? Certainly Olympia Snowe had her day in a 60 vote chamber, but wouldn't another senator be equally pivotal if the Senate was a 51 vote body?

    It seems unlikely that people would blame Democrats for a Republican filibuster. Even people who barely follow the news will know that it is the Republicans who are filibustering and the Democrats who want the up or down vote. Isn't the party that is on camera endlessly bloviating sufficiently obviously wasting the Senate's time?

    Certainly some people will respond by hating politicians even more, but isn't weakening the filibuster a big enough get to be worth an outside risk?

  6. I'm generally in favor of calling the bluff. Reid could even set it up nicely, if he clears the agenda of things that Dems want first. Then, the Reps would be delaying the bill at hand as well as their own legislation. Also, I think that the analyses at hand (Jon's and Greg's) might be missing the fact that the president gets all the attention. Seriously, the first question asked would be "A filisbuter? What's Obama's position on it?" With Obama's help, the Dems don't have to give up focus to the Reps. Also, once this were to get beyond a couple of days, the stories change. No longer does what the Reps are saying have any import; it becomes "what's with these guys?" The 95 budget comes to mind. When Clinton vetoed it the first time, it was no great shakes. However, the government shutdown was successfully pinned on the GOP by Clinton, and multiple days of that story took their toll. The first day played neutral, but every day after that got more pro-Dem.

    That said, I think you don't do it on health care. You need to pick an issue that will come off as silly obstructionism. I'm not sure what that is, though.

  7. Matt,

    If you don't do it on health care, you don't do it any time soon. There's not a lot of extra floor time this year.

    That said, I think that Reid and Obama have made a mistake by not attacking GOP obstruction in the Senate more, over the course of the year, especially on exec. branch appointments. I don't think the way to do it is with a "live" filibuster, but I do think they could and should have elevated it to a major issue.

    To anonymous, anything that prevents the Senate from running as a party cartel is good for the power of individual Senators.


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