Friday, November 23, 2012

Yet Even More on the Live Filibuster

Yes, I'm back on this one: the futility of the reformers' romantic attachment to "talking" filibusters. I'd give it a rest, but we're only weeks away from when reform will (probably) be considered

At any rate: several people more expert than myself have talked about this over the last week, and if you still think the focus on forcing the majority to talk is a good idea, I recommend looking at what they have to say.

First, Greg Koger had a very interesting post pointing out that whether a Merkley-style reform would work depends a lot on how exactly the rules are changed. It's not enough to simply call for talking filibusters; if it's to "work" in the sense of making the minority really have to pay a high price for filibustering, then the rules have to be tinkered with to actually make that happen. Sarah Binder followed with an item which emphasized the uncertainty of reform; about this point, however, she said "I generally share Greg’s degree of skepticism about the potential effectiveness of the talking filibuster reform." See too Steven Smith's comment to Sarah's post, in which he makes the key point:
The majority, of course, generally does not want talking filibusters. As the minority knows, the majority usually wants to get to other pressing business. Negotiating around the filibustered bill would still be common.
That's really what it all comes down to, and why Smith concludes that it's "quite uncertain" whether these reforms would "reduce filibustering."

Now, I don't want to simply argue from authority, but for those outside the field: these are perhaps the three top scholars of Congressional floor procedures in general and the filibuster in particular.

They aren't saying, by the way that the rules cannot be drafted to make talking filibusters required in a way that attrition is the likely result. Nor am I! What they are saying is that it would take a very carefully refined set of rules.

In other words: it's not hard at all to draft rules under which filibusters could be beaten by setting up a physical challenge which the minority could only meet for some very limited set of time. It's also not hard to draft rules under which talking filibusters would be required, but could be sustained indefinitely -- indeed, that's basically the current case, except that "required" live filibusters under such rules will rapidly give way to negotiated silent filibusters because it's the best alternative for the majority. But what's the point? No one cares, or should care, about talking per se; what everyone should care about is the balance of influence in the Senate. So forget about the talking part of it, and get on with real reform.

For even more, see another comment to that Sarah Binder post from Richard Arenberg; a good post by Dylan Matthews from last week; and a general post about reform from Matt Glassman.


  1. If the filibuster and the Senate's unanimous consent requirements are so valuable for the various theoretical reasons given by you and others, why is it that most legislatures throughout the world 1) don't have anything like it and 2) still seem produce perfectly good public policy at least as often as the US Congress does. Even the older arguments (we're a big diverse country, etc.) don't seem to hold much water given today's ideologically polarized parties.

  2. The question for me is whether top Senate aides are reading these blogs. Obviously the Senators are not. Is this information and expertise getting to the people who might do something about it?

  3. Seems like there are two buckets that reforms fall into: a) reducing the number of votes required to pass something from 60 to X, where X is somewhere between 50 and 60, or b) pretending to do something while leaving the number at 60. The flavor of pretense for (b) is completely uninteresting.

  4. On the prior thread, I argued for a "topical filibuster", which I later realized would be impossible to enforce: faced with that requirement, minority senators would avoid the unpleasantness by speaking in vague generalities (e.g. (minority) Senator Obama rails against raising the debt ceiling because think of the children, irresponsibility and other tropes that he apparently doesn't feel as much as President). It would be almost impossible to enforce the aversive unpleasantness of an actual, ad-hominem filibuster.

    Koger makes another great point that I hadn't thought of: each Congress is only two years; give the minority a chance to hold the floor and they'll use it to kick the can down the road, running out the clock. You may think they only have a mild opposition to your milquetoast candidate; imagine the surprise when they've railed against him for two years, the session is over, and the majority has achieved nothing.

    On a totally unrelated topic, I also notice that is among the media outlets hyping tonight's ND/USC game as "One win from glory!". I suppose this means that reaching a championship game, regardless of outcome, is definitionally "glory". It will be interesting to see how ND handles tonight's "climactic" (!) game (and potentially that other minor afterthought in the first week of the New Year).

  5. I'm still convinced that using the NFL Replay Challenge Rule as a model for Senate Filibuster Challenges would allow for the true rights of the minority without just gumming up the legislative works valde abominanda (exceedingly nauseatingly).

    You'd have a given number per session -- say 25, more than the average in the Reagan term -- you'd have to save them for things that actually mattered. *How* you were required to perform them would be Part B.

  6. Why aren't we just pushing to end the filibuster? It had no place in the original Senate after the Constitution was created, and it is obvious we've reached a point where its usefulness, if it ever existed, is now only an excuse for abuse.

    The House of Representatives under Uncle Joe Cannon as Speaker of the House, at the turn of the 20th Century, wielded power that operated like a filibuster. The House members revolted, and now there is far more democracy among the Representatives. (See Wiki's entry on Joseph Gurney Cannon). It is time for a democracy among the Senators where a majority of Senators are allowed to pass legislation.

    This dance that is going on is another sign that the Democratic Party still doesn't get what it's been handed--again. It does not matter that the House remains in Republican hands. There will be defections. And most important, the Democratic Senators and President Obama, when it comes to judicial nominations, should not have to do anything to placate the Republican minority in the Senate. Nothing.

    1. The two reasons to not simply push for eliminating the filibuster are (1) it's unlikely to happen, because Senators have strong incentives to retain their individual influence, and (2) there are good democratic reasons to avoid pure majority party rule. Not everyone agrees with me about (2), but everyone interested in reform needs to understand (1).

  7. Jonathan is right about the unlikelihood of elimination, but that doesn't make it right. Of course the senators want to preserve their personal power. This is, however, simply a collective action problem that should be solved. Even without the filibuster, the Senate is constructed to prevent majority rule. The fifty senators from the smallest (in population) states represent just 17% of the U.S. population. It should be noted that these senators are primarily from mountain and rural states so there is gross over-representation of those interests. How much more undemocratic do we need to be to prevent unchecked majority rule?


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