Thursday, October 28, 2010

Question Day Answers 2a: The Live Filibuster

I deferred one part of the question from the last post.  Here's the question again:
[Voltaire's prof says] Reid's threats to let Republicans filibuster are empty since Reid has never forced a live filibuster. The "cost" of filibustering, in both the public eye and terms of Senate norms, has been reduced by Reid into a cheap option Republicans can afford to do all the time.

In other words, he wants Reid to pick an issue, and force the R's to read from the telephone book. He says this will raise the credibility of Reid's threats and reduce the overall number of filibusters by R's, though most will still be "virtual."
On the general issue, I'll just refer everyone again to my old post on the live filibuster.  Bottom line is that the majority has a lot more to lose then the minority.  Indeed, at the end of the 111th Congress (at least so far) the Democrats seemed to have the votes for several additional bills or nominations but no floor time to get to them; it's hard to see how sacrificing floor time to a demonstration of...what, exactly?...would help with that.  Against a determined group large enough to prevent cloture, there's really nothing that a live filibuster can do except advertising, and it's highly unlikely that it's effective advertising (no one would read from phone books) or a better use of floor time than the alternatives.  For a smaller group, cloture is available and probably more efficient.

There is, however, one circumstance in which forcing a live filibuster might work: when the opposition is small (clearly below the number needed to prevent cloture) and the majority suspects that the opposition is not, in fact, very intense.  In that case, the opposition might claim that it would, if necessary, hold the floor, but in fact be bluffing.  That wasn't the case on any of the big legislative items, or even the small ones that would excite conservatives -- in the latter, it would probably be worth it for a dozen Senators to keep going just to generate the kind of publicity they really crave, even if it was overall unpopular and they didn't actually care about the issue.  But on some of the small stuff, especially the noncontroversial nominations, it may be the case that opponents were really bluffing.  Remember, all that's at stake in those situations is trying to get through the bill (or nomination, which I think is really where it mattered) without having to chew up floor time on cloture.  But then again, even in that situation it's not really all that big a deal to move ahead with cloture and see what happens; it's likely that the minority just won't use post-cloture time, and so you haven't lost much by using cloture to get it done.


  1. There are other ways of fixing the filibuster without resorting to the "read from the telephone book" solution. Norm Ormstein wrote about it back in August. I like the idea of putting the burden on the minority party to keep debate going:

    "For starters, the Senate could replace the majority’s responsibility to end debate with the minority’s responsibility to keep it going. It would work like this: for the first four weeks of debate, the Senate would operate under the old rules, in which the majority has to find enough senators to vote for cloture. Once that time has elapsed, the debate would automatically end unless the minority could assemble 40 senators to continue it."

    With travel schedules, campaign obligations, illness, etc. that would be more difficult than it sounds.

    Ormstein did say the old "read from the phone book" method was better. He wrote:

    "An even better step would be to return to the old “Mr. Smith Goes to Washington” model — in which a filibuster means that the Senate has to stop everything and debate around the clock — by allowing a motion requiring 40 votes to continue debate every three hours while the chamber is in continuous session. That way it is the minority that has to grab cots and mattresses and be prepared to take to the floor night and day to keep their filibuster alive.

    "Under such a rule, a sufficiently passionate minority could still preserve the Senate’s traditions and force an extended debate on legislation. But frivolous and obstructionist misuse of the filibuster would be a thing of the past."

    I don't care who does it, right or left - and let's be honest, the right has abused the filibuster far more than the left has. Obstruction for purely political gain to "break" a president is wrong and it does not serve the American people. We deserve a FUNCTIONING government and if arcane Senate rules prevent that from happening then GET RID OF IT. We are TIRED of this shit.

  2. Jon,
    Isn't there a second situation? For example, take the extension of unemployment benefits. Not a popular position to oppose, yet the GOP allowed the filibuster to go on. From a partisan standpoint, Reid could have forced a live filibuster on that. A live filibuster would get a ton of media attention. And that attention would have been exceedingly negative towards the GOP, and the entire Dem caucus would have liked that, or at least 58 of them. Why not those issues?

  3. Yeah, when Jim Bunning was single-handedly holding up the unemployment extension bill, the Democratic leadership was discussing forcing him to personally remain on the floor to stop it. (If I remember correctly, they talked about scheduling votes to coincide with major sporting events that Bunning might have wanted to see?)

    It didn't actually come to that, of course, since Bunning's caucus wrestled him to the ground and forced him to allow a vote in exchange for nominal concessions. Which just goes to show that in practically every case in which it would be in the majority party's interest to force a filibuster, the minority party knows that, and doesn't let one happen.

  4. Aren't there two interrelated but separable problems: 1 the fiiibuster uses up floor time and 2 the filibuster prevents the majority from conducting other business? What if they were separated? ie the opposition has x hours to speak before a vote; but during that time the majority can continue with other business? Leading to a headline like: "Republicans are currently engaged in 4 filibusters. The Senate will sit around the clock through Xmas..."

    Allowing 2 filibusters on every bill is silly; eliminate one of them.

    Put the onus on the 40 to keep each filibuster going from day 1.


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