Wednesday, March 10, 2010

Tracking is Not the Problem

Barry Friedman and Andrew D. Martin are wrong.  "Tracking," which allows the Senate to move from a stalled piece of legislation to a bill or nomination that can be completed, did not cause and is not causing minority obstruction in the Senate.  Tracking is a device used by the majority party to benefit the majority party. 

Once again, the only way to break the filibuster of a several-Senator filibuster is through cloture.  It cannot be defeated by attrition.  And if the majority cannot find 60 votes for cloture, it cannot pass a bill.  Forcing a "live" filibuster might or might not win the spin game, but it would not stop the filibuster.

Nor would it overly inconvenience the minority.  Friedman and Martin write:
The new-school filibuster would preserve minority rights in the Senate, while imposing significant costs on obstructionist members, changing the calculus that causes today’s logjam. Stuck on the Senate floor, filibustering senators couldn’t meet with lobbyists or attend campaign fund-raising events; they couldn’t do much of anything, really, until their filibuster ended. 
This is wrong.  For a forty-one Senator filibuster, the minority could take turns holding the Senate floor, leaving one Senator to talk for a while while the others go about their normal business.  Moving to a live filibuster would impose virtually no costs at all on obstructionist members, but considerable costs on the majority party, which would be unable to conduct other business. 

Friedman and Martin talk about Jim Bunning's filibuster of an unemployment benefits extension, but I don't see how that helps their case, since Bunning was defeated under the current Senate practices once it turned out that he really was alone on the Senate side. It's really hard for me to see an argument for the relevance of tracking to the Bunning episode.  Overcoming the objections of a single Senator simply require the will of the majority to do so; tracking has nothing to do with it, one way or another.  And the fact that Republicans did not support Bunning has little relevance to bills and nominations in which Republicans are united and can muster 41 votes, anyway.  The same, by the way, is true of holds in general, which have pretty much nothing at all to do with tracking.

On tracking, the bottom line is that it is a tool of the majority party for the convenience of the majority party.   It does not make filibusters easier; it is a response by the majority to the fact that filibusters are easy under Senate rules.  Both parties, under a variety of Majority Leaders, have used it, because it helps the majority.  If you don't like the 60 vote Senate, then you should support a change in Senate rules to end the 60 vote Senate, because that's where the filibuster gets its strength, not from the tactics that majority parties have adopted to deal with it.

The full argument about live filibusters is here.   See also filibuster scholar Greg Koger's comment about tracking here (down at the bottom, although the whole post and the entire series is very worthwhile).


  1. But it DOES impose costs on the minority party as well.
    A real filibuster holds up the entire chamber. Thus, if members of the minority want any of the OTHER business to get done, then that pushes against them on sustaining the filibuster.
    Of course, with modern partisanship, it's very likely that most of the backers of the unfinished business are also majority party members, and thus the filibuster would hurt them on both the current AND the postponed issues.

    That said, I think the Senate spends too much time in debate anyway, because it's not real debate. So, I don't mind real filibusters because the pressure they would put on ordinary debate means that nothing of valued would be lost.

  2. OK, but: your "of course" gives away the store. There just aren't a whole lot of things that are going to pass that the minority (party) wants more than the majority.

    The only time that I can picture any filibuster really hurting the minority is if, as with the Bunning thing or the defense bill back in December, its considered a must pass. But on those, you don't need a live filibuster to make your case (it might or might not be a helpful p.r. gimmick, but as seen with Bunning it's hardly necessary). But if the majority is insisting on leaving another bill on the floor, getting blocked, while a must-pass bill has to wait, the pressure is going to be on the majority to just give up on the other bill.

  3. I don't like the store, so fine.

    Thinking more about this, it's actually pretty nasty. To force the minority party's hand, you'd need to stack the upcoming calendar with lovefest legislation, the proverbial "flags for orphans" bill (You HAVE to get this reference). The problem with that is that your attacks on the minority party for holding up business will ring hollow when the very next bill is consensual. And, if you stack the calendar with the list of potential filibusters, the minority party has no incentive to give in on the first one at all.

    I guess my objections to the filibuster are such that I just want anything that might weaken it, even if such things are pretty unlikely to work.

  4. Jonathan Bernstein said...
    "OK, but: your "of course" gives away the store. There just aren't a whole lot of things that are going to pass that the minority (party) wants more than the majority. "

    Incorrect; under the old system a fillibuster was closer to forcing a government shutdown. Any savvy Senate majority leader should be able to place at least one major piece of legislation in a position to be blocked by a fillibuster; legislation whose passage was earnestly desired by the minority (e.g., pork for their states, money for the elites, etc.).


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