Monday, November 26, 2012

Will (Can?) Republicans "Shut Down" the Senate?

In this morning's Politico filibuster story, Republicans threatened to "shut down the Senate," in the words of GOP Whip-to-be John Cornyn (via Greg). 

Filibuster reformers such as Ed Kilgore respond to such threats by saying, in effect, bring it on -- and he and Kevin Drum ask a good question:
Can Republicans really obstruct the Senate even more than they do now if they put their minds to it?
The answer? Yes. But it's not a reason to avoid reform.

As far as what Republicans can do: they haven't quite blocked everything. Most things, but not everything. Quite a few nominations have come to the Senate floor without needing cloture. In many cases, they don't even insist on a recorded vote. Not only that, but Republicans usually don't insist on maximizing disruption. They usually don't demand the 30 hours of post-debate time that they are entitled to under the rules; they usually yield it back. They usually don't demand serial cloture votes on minor legislation. They don't object to switching away from a bill that's on the floor to another bill (remember, the modern tracking system which allows the Senate to get work done while a filibuster is underway is a benefit for the majority party, not the minority). And I'm sure that if you asked Greg Koger or Sarah Binder or Steve Smith, you could get a longer list of potential tools that the minority party hasn't used yet.

So, yes, they could do a lot more to obstruct than they currently do.

However. Would they shut down the Senate if Democrats forced through a rules change by majority vote? Almost certainly, the answer is no -- because nothing about reforming the rules would change the incentives for the minority party to obstruct. Take nominations, for example. Why would Republicans have a greater incentive to obstruct them after majority-imposed reform? To punish the majority? What does that give them?

Indeed: after the majority shows they are willing to impose rule change by simple majority, the minority party may have reduced incentives to "shut down" the Senate. After all, what's been done once could be done again. So if Republicans really did start forcing, for example, a week of floor time to get minor executive branch nominees confirmed, Democrats could threaten to change the rules to eliminate that option.

Two caveats. One is that an immediate post-reform tantrum is certainly possible. It's more likely that it would be symbolic than across-the-board, but it wouldn't be surprising if Republicans do shut things down for a week or so before resuming "normal" filibustering.

The other is that normal filibustering will itself be altered, at least perhaps, by whatever the actual rules changes wind up being. The way this will actually work is that once the details of reform are made public and then passed, minority party rules experts will study them and determine the best way to continue blocking things. Assuming that's possible under the new rules -- and that appears to be Harry Reid's intent, to change but not end filibustering -- then we'll get some sort of new-look filibusters, which may or may not be less dysfunctional than what we have now.

But no: Democrats should not worry too much about threats to "shut down" the Senate, even though Republicans almost certainly would be able to do it. Basically, if they didn't do it so far, they had good reasons not to do it, and those reasons would not disappear with reform.


  1. I'm thinking at the start of the 113th they should just change the rule that it says a 2/3rd majority is required to change the rules. (Is that rule even constitutional?)

    Once the majority has established that it can change the rules, with a simple majority vote, then they can do, minor, incremental changes.

    Start with "standing filibuster", no ripening period, and 40 members present to maintain debate.

    If that doesn't give you a functional Senate then keep tweaking...

    1. And... If they don't change the rules, to allow a majority to change the rules, then it doesn't really matter what else they do.

      If the rules can only change once every 2 years, then a minority intent on shutting the place down will always have some means to do so.

    2. Yes!

      That's really the only change necessary. Give them one chance to play nice, and when they don't, destroy whatever it is that they're trying.

  2. Didn't GOP Senators threaten to "shut down the Senate" back in 2011 when Obama did those recess appointments? I seem to remember they got really mad but tellingly didn't do anything.

  3. What do the experts here think about Harry Reid's proposal to require that debate on a bill begin before filibustering can start? I confess I don't see what that does.

  4. On "Democrats could threaten to change the rules to eliminate that option." They could but they won't. The Democrats are not threatening the nuclear option -- changing the rules by a simple majority by lying about what the old rules were. They are planning to use the freedom of a new Senate to make its rules. No lies, just not adopting the old rules as the first thing they do.

    Even if (and it's still a big if) there are 51 democrats willing to do that, there might not be 51 Democrats willing to lie to change the rules. I'm not saying most politicians are honest, but just one or two honest Senators might make the rule change a once every other year option. My fear is that there are dozens of honest Democrats in the Senate.

    Also on obstruction beyond what Republican already do, there is more to obstruction than the filibuster. There are cumbersome rules (such as bills and amendments must be read on the floor) which are customarily waived by unanimous consent. An insistence by a Senator that the bill be read can't be pushe aside by 60 votes and cloture. It must be obeyed. The threat to object to waivers of the absurd rules rather than the threat to filibuster is the main reason holds are effective.

    I still think the threat is a bluff which will be called. Yes Republicans will make a huge fuss, but in the medium run they will look forward and obstruct when it serves their purposes. Basically, I think they believe that if they go too far, even the US public will notice what is going on. It is not wise for Republicans to insist on withholding more money from 98% of paychecks because they are mad the rules of the Senate were changed.






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