Wednesday, November 28, 2012

Counting Filibusters and Getting Reform Right

Longtime filibuster opponent Hendrik Hertzberg encountered a pretty good Michael Tomasky item on the Reid/Merkley/Udall reform package which wondered whether getting rid of the motion to proceed and forcing talking filibusters would be worth the bother, and was puzzled. Sure, Tomasky eventually concluded that some reform was better than none, but Hertzberg thinks it's obvious (his emphasis):
For the past three years, as I noted in that last post, the Republicans have been firing off filibusters at an average rate of a hundred and twenty-nine per year. That comes to very nearly one filibuster for every single goddam day the Senate is in session.

However, if the filibustering senator or senators must actually filibuster—if they must stand up on the Senate floor and talk till they’re blue (or, more likely, red) in the face—how would it be possible to keep up the one-a-day pace? How could there not be many fewer filibusters than there are now? And how could that not be a very Good Thing?


First of all: cloture petitions -- and that's what he's using for this count -- are simply terrible measures of filibusters. They may be the least-bad measure, to be sure, for some purposes. But in this case, cloture petitions massively underestimate the total number of filibusters. In a true 60 vote Senate, which is pretty much what we've had since 2009, every single measure is being filibustered. Every single bill. Ever amendment to every bill. Ever nomination. That's true whether or not there's any actual delay at all; simply insisting on 60 is enough to make it a filibuster. And since November 2008, Republicans have insisted on 60 for almost everything.

But second of all: if "a filibustering senator or senator...must stand up on the Senate floor and talk till they're blue" -- they're obviously not only stalling whatever it is that's on the floor at that point, but they're also stalling every other piece of Senate business. Hey, I'll add emphasis of my own: as long as the talking filibuster is going on, it blocks every single bill and nomination.

Which is precisely why talking filibusters died: they are bad for the majority party, not the minority.

The goal isn't to reduce cloture petitions! The goal is to allow the Senate to function better. And it's not just about 60 vs. a simple majority; it's also about being able, among other things, to rapidly get through non-controversial measures (including, yes, nominations).

And part of this, the part I'm most worried about right now, is that while partial reform (as Tomasky argues) is probably better than none, there are only so many shots at this -- they should try their best to get it right. They may not be able to because they don't have the votes. But they really shouldn't fall short because they're attached to some fantasy that if only the minority were forced to explain their position, they would be forced to give up. That's just not going to work.


  1. So, in the age of lots of news information, wouldn't it be easier for the majority to point to a talking/overtly filibustering minority and blame that minority for the failure to get through routine business? Wouldn't that disincentivize filibustering to the minority? Or would they just grind everything to a halt? It would seem like their options for reducing the ability of the majority to conduct business would be more binary -- that they'd have to grind everything to a halt or establish norms for what counts as routine business. But I guess that's too optimistic?

  2. Which is precisely why talking filibusters died: they are bad for the majority party, not the minority

    This has been my biggest learning from the filibuster reform circus: two years is a surprisngly short time for a determined group of 40+ obstructionists to block everything else; its not inconceivable a minority might spend two years verbally protesting a proposed change to the paint scheme in the Capitol restrooms.

    That would represent a small absolute number of filibusters, though. I guess if its a competition, a one-filibuster Congress might look like a win. Of sorts.

  3. I agree that one of the biggest problems with the Senate (and something people don't focus enough on) is the Senate's complete inablity to, as you say, "rapidly get through non-controversial measures." Every week the House usually passes 10 or so bills that are non-controversial and bipartisan under a suspension of the rules. Once in a while the Senate passes some of these bills by unanimous consent, but most of the time these minor bills never get taken up in the Senate. It's not that these bills wouldn't be able to get 60 votes--they would be able to. The problem is that unless all 100 senators agree to it (which is often problematic since senators like Rand Paul, Mike Lee, Tom Coburn, etc. like to hold things up for all kinds of exasperating reasons) there simply isn't enough floor time to pass these bills through the normal procedural process, and so they just end up never getting passed.

    That is why I wish the Senate would move away from needing unanimous consent to quickly pass bills, and be able to just pass bills with a 2/3 vote like the House does when they vote under a suspension of the rules.

  4. While I don't disagree fully with your point about the death of talking filibusters, I think there's some problems of causation.

    In particular, shouldn't we be trying to understand how a 60 vote supermajority became necessary to get anything done? Back when there were talking filibusters, there were also many fewer filibusters. Are these two facts related? Maybe.

    I think a key feature here is the change from 2/3 of members "present and voting" to 3/5 of members "duly sworn." That basically makes filibusters costless for the filibusterers, and incredibly costly for the majority. If you look at the massive increase in filibusters, it all started after this rule change (which was, ironically, supposed to make it harder to filibuster).

    If you're not going to just get rid of the filibuster, I don't see how you can have any serious reform without changing this back.

    The absence of talking filibusters, I think, has a lot to do with the fact that there's absolutely no point to them for the majority, since there's no possibility of outlasting the filibusterers.

    1. John,
      I think that you're also looking at correlation. What's happened is that the Senate has become populated almost entirely by partisans. So, finding 41 who oppose something has become simplicity itself, because there are 41 who want to make the majority party look bad (never mind actual policy differences).

      Over time, the GOP (and, to a slightly lesser extent the Dems) have become happier to engage in partisan warfare in the Senate. So, the filibusters are mostly partisan. Heck, even when the GOP doesn't agree with Paul or Coburn, they support their filibusters just to mess with the Dems.

      Now, the 60 vote Senate didn't magically appear in 2009. It's been going this way, and both sides have done it. Trent Lott filled the amendment tree, in part because Dems would have offered poison pills. From my seat, the GOP is more responsible, but you would expect a Dem partisan like myself to say that, so take my observation with a pillar of salt.

  5. Have you seen Nate Cohn's article on the filibuster?


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