Thursday, December 6, 2012

What Talking Filibuster Reformers Are Missing

Sahil Kapur over at TPM today has a very optimistic reading of the Merkley/Udall talking filibuster plan. As he tells it, the talking filibuster plan they are considering would "dramatically weaken what is currently an ironclad 60-vote requirement to move to a final vote on legislation without the unanimous consent of the Senate." 

I have a new piece up at TAP looking at reform in general, and I'm much more pessimistic about that part of the reform package. Well, I don't know if optimist/pessimist is the correct description here, but the point is that Senate reformers believe their plan will put an end to the routine 60 vote Senate, and I think it won't.

Remember, the Majority Leader right now can force filibustering Senators to hold the floor indefinitely. Why don't they? Because, Merkley/Udall believe, the burden of doing so falls the wrong way under Senate rules. For example, instead of speaking, they can enter a quorum call and rest until the majority party shows up. If the majority wants constant speech, then, they have to hang around the Senate floor. So instead of a challenge for the minority to keep talking, it becomes an obligation of the majority to be available. Reformers would change this: during a talking filibuster situation, new rules would simply force them to talk or else a vote would be automatic.

Reformers seem to believe that their plan would still allow filibusters in cases of intense minorities -- say, for major bills or highly controversial nominations -- but that for most issues, shifting the burden and increasing visibility would mean that the minority wouldn't want to expose themselves to the blame for delaying the Senate's business. 

I'll concede that it's at least possible it would work out that way in practice. But I think that's highly unlikely.

If I were advising Mitch McConnell, I'd tell him (if these rules were in effect) that the best play is probably to respond immediately with a very much live, talking, filibuster on the very first item to come to the Senate floor -- whatever that is. Go to the floor. For the C-SPAN cameras (and, I suspect, for the Fox News cameras, at least to some extent) talk about how the Democrats have imposed draconian, tyrannical rules that have ruined the longstanding traditions of the Senate, and how Republicans will fight back the only way they know how -- by taking their case to the American people. 

And start talking, and keep talking. Yes, the new rules would make it at least somewhat more difficult. It's not clear so far whether the minority would be required to keep 40 Senators close at hand or not, or just require them to fill the speaking slots. Sure, you won't get too many volunteers for the 2-3 AM shift, especially after the first day or two, if Democrats insist on keeping the session going overnight. But they would manage, because the incentives are pretty strong.

That is: prove you're willing to do it once, on a non-critical measure, and the whole thing collapses. 

Could the majority try to wait them out? Sure. But, again, every day of waiting is a day where nothing gets done. No regular legislation, no nominations, no appropriations, nothing. The majority simply can't threaten, at least not if it expects to be taken seriously, to keep going indefinitely. The minority can; they just have to be able to physically handle the challenge. And even if the Senate stays in session constantly, it's just not that hard for Senators to give a one-hour speech every other day or so.

Part of the calculation of the reformers appears to be that obstruction for its own sake would just be too unpopular for Republicans to be able to continue, or that Republicans would hesitate to publicly oppose what previously they were willing to oppose without publicity. Frankly, I think this is just plain nuts. Most partisans on both sides really believe in their positions -- and really believe that if only they would get a fair hearing from the American people that their positions would become much more popular. And that's without even getting into the conservative information feedback loop: on Fox News, a Republican filibuster would be portrayed as a noble effort in favor of some very popular, common sense position.

Not only that, but the logic of keeping the thing going would be pretty strong. After all, in a normal filibuster situation it's possible at least in theory to bargain for a few minority party votes and no one really notices. But once something is elevated to a major national issue, the first Republican Senator to break with the party would be almost begging for a primary challenge. 

And for what? A little sleep and a trip back home to the district on the weekend? Sure, Senators are human and love their creature comforts. But that's the only disincentive. Meanwhile, on the Democratic side, bills that could pass and nominations that could be confirmed would just build up on the Senate calendar, with no prospect of any rapid resolution.

To be sure: it is certainly possible to write a set of rules that would make a talking filibuster impossible to sustain for more than a few days. That's not what they're trying to do here, but yes, it could be done. But, as I've asked before, why do it that way? 

Look: it's genuinely hard to figure out a way, by rule, to find a balance between majority and minority in the Senate that doesn't either produce constant gridlock when the majority party is below 60 (or whatever number you pick) or produce, as I talk about in the Prospect piece, another House with its absolute majority party control. I think it's great that the current group of Senate reformers have that goal, but making talking filibusters a part of the rules mix only makes it harder to actually get there.


  1. To give you a little pushback (despite my agreement with you), would it work by doing it on the first thing? Sure, you're sending the signal that we can do this again later. But, in terms of floor time, wasting it in January and February is really not a big deal. Dems would convince themselves they could make do with less floor time on bills later, and besides, in Jan/Feb everything is in committees and hallways anyway. This is one of the reasons why Congress got rid of the lame duck sessions: they had so much work to do in them, that filibuster vague hints were enough to table a bill and move on to the next one. Until it's crunch time, people think time is infinite.

    So, for the value of sending the signal: yes. For the actual consumption of floor time in January mattering: no.

    1. That's a fair point.

      And you could definitely hold off at least until the first thing that you were going to vote against in the first place; no reason to vote against cloture in order to get the ball rolling on some non-controversial exec branch appointment.

      So depending on what Reid brings to the floor, you might not really get a good "first thing" for a while anyway.

    2. Which brings us back to the reality the reformers want to reach: the minority will *continue* to have the ability to filibuster anything. But with well-fashioned new rules, some of them won't want to publicly filibuster *everything*.

      Would Scott Brown have enjoyed being part of a days-long effort to block the Creating American Jobs & Ending Offshoring Act? Or the extension of low rates for student loans? Or the Paycheck Fairness Act?

      No, of course not. Nor Would Snowe. Or Collins. Or Murkowski.

      And sure, there aren’t that many moderates, and because the GOP currently has a small cushion, they wouldn’t always be forced to vote with the party, or even to take part in the floor circus.

      But what does, say, Dan Coats want? He’s expressed support for filibuster reform. Does he want his local political reporter to ask him why he’s supporting the filibuster of the Small Business Jobs and Tax Relief Act? And to have to explain the nuances of his and his party’s position, probably multiple times over the course of the filibuster? And to answer the question: well, why are you not working WITH the Democrats to come up with something you all can live with? More often than not in the past two years, there is no good, common sense answer to that question. But with the pro forma filibuster, it only (rarely) gets asked of the leadership, by the national media, and the GOP leaders have such a well rehearsed, unvarying script that it’s just expected, and accepted.

      And there are others. What does Dean Heller want? To filibuster a new DREAM Act? Maybe not. What does Mark Kirk want? What does Kelly Ayotte want? To obstruct a new American Jobs Act, as she did previously?

      After reform is passed, you're right it does come down to which side proves its backbone. I don't think Reid will adopt a mandatory talking filibuster if he's not ready and willing to break them on the first go. And the second and the third. He may not be ready for that, and that's fine with me. Removing the other cloture hurdles, and requiring 41 votes to sustain any filibuster, talking or silent, are very good steps.

      But if he does adopt the talking filibuster, I think he has the chance to seriously damage the reliable calculus of lockstep opposition. It's not that the very few moderates would publicly oppose their party each time, it's that they would, after a time of letting this new reality sink in, step up for their own interests and seek more ways to work across the aisle, and influence more legislation from the ground up.

      And they would have dozens of Dem hands extended back across the aisle to them.

    3. Thank you for your very intelligent and reasonable arguments here, my emotions were boiling for me to post something much more snarky.

  2. I think your speculation is worthwhile. I just think the scenario would play out differently.

    I suspect that that first "See! We can can keep this up forever!" filibuster would fail. After 5 hours? 24? 48? 72? who knows. But it seems like the time-frame during which the majority can comfortably accomplish nothing, be it a few hours or days or weeks, is far, far longer the GOP's willingness to hold the floor and talk to the camera.

    And once that first effort fails "the whole thing collapses."

    If I were advising McConnell I would be telling him to switch tactics. Skip the talking filibuster. Just switch to forcing every bill to be read entirely, or never allow meetings to occur after 2pm, or one of a thousand other things a Senator can do to insure that nothing productive (that the GOP doesn't agree with) ever happens.

    Or, you know, they *could* come up with some actual policies that would benefit the American people, advocate for those policies, and try to win the majority some day...

    1. I really don't think so! With 45 GOP Senators, you're talking an average of 32 minutes of floor time a day if the Senate is kept constantly in session. As Jonathan says, that's an hour every other day. Not at all onerous! And they could easily work out shifts to allow a couple members at a time to travel. I think the GOP could literally keep it going indefinitely, from January 3rd until the end of the Congress.

      But they won't have to, because that would mean no nominees would be confirmed, no budget (or continuing resolutions) would pass, and the country would basically be screwed. And it's the majority that takes the blame for the country being screwed, so it's the majority that will inevitably cave.

    2. I feel pretty confident predicting then entire 113th congress will NOT be spent on a two-year GOP round-the-clock talking filibuster over some tax cut bill or an appointment.

      But. We shall see.

    3. Yes, and you can be confident of that because the Democrats would never let it get that far; they'd cave or change the rules. The point I'm making i s that if they made these rules changes and perversely stuck with them, the GOP would win any confrontation they cared to start.

  3. "To be sure: it is certainly possible to write a set of rules that would make a talking filibuster impossible to sustain for more than a few days. That's not what they're trying to do here, but yes, it could be done. But, as I've asked before, why do it that way? "

    Why not do it that way?

    Maybe it won't strike a perfect balance, but wouldn't it protect 'intense minorities' more than a strictly majoritarian Senate?

  4. I think that the real danger for the Republicans is that the entire thing is video-recorded. Let's say you have a true believer, an Alan West type, who takes the floor and talks extemporaneously for an hour. Maybe he says something really stupid, or really offensive to some groups. Then that gets picked up by cable news.

    The comment then becomes the story, much like the 47% comment, which no one in the room found offensive. Nonetheless, the idea of having 40 Senators talking off-the-cuff for hours on end has to be really frightening if your main goal is message unity.

    1. I think there is an interesting component to this. Maybe the end result of this genre of reform is not that the proximal legislative outcomes are different than under the status quo, but that the political and messaging dynamics might change. It's easy to feel righteous about the idea that a minority in fierce opposition to some legislative act ought to publicly articulate its reasoning in a substantive way. It's likelyB wishful partisan thinking to presume that this would sway public opinion much or have an electoral effect. But it might still offer a more satisfying national political conversation.

  5. For CA folk, Sen. Feinstein as of Thu Dec 6 is in concrete on NOT voting for filibuster reform at the 51-vote level! (Obviously Udall-Merkely will never get 60 votes, so she's in essence refusing to vote for even this very mild filibuster reform which does completely protect the rights of the majority.) Pls call daily: 202-224-3841 DC; 415-393-0707; Unless the Filibuster Rule is modified right on Jan 3, Prez Obama will have no meaningful 2nd term. Call; tell CA friends.

  6. Jonathan: I'm not nearly as sanguine as you are that the physical demands that these new reform proposals make are inconsequential for Senators.

    I'm 55 years old. I was a high school and college athlete, and I'm still a fairly active person even now, though I had a hip replacement two years ago, and have flare-ups of arthritis and back pain several times a month.

    I would be in discomfort if I had to hold the chamber floor for hours at a time--especially if I had ill-timed my last bathroom break and my prostatitis made my bladder control questionable.

    You paint a scenario where Senators could be sequentially scheduled so as to require each of them to only spend 30 minutes on the floor at a time.

    I've owned or managed a number of businesses in my time, several of which made heavy use of shift workers for 12- and even 24-hour days.

    I can tell you that it's very demanding to effectively schedule staff to cover a 24-hour schedule, and that's when I'm their employer and they presumably have to listen to me.

    To try and force a floor participation schedule on independent Senators who have many things going on in their working day (including many important events that take place away from the floor) is simply not a foregone conclusion.

    In short, the demands that a continuous filibuster with live floor presence would make on the bodies, bladders, and minds of Senators (very few of whom are as young and sprightly as you) will very definitely have an impact on how often and how lengthy the filibuster will be.

  7. I think you are probably right in "normal" times. However, in a period where the minority party is going to oppose EVERYTHING that the majority proposes, I think that there is very little downside for the Dems to simply let the Republicans play their game. And the optics for voters are pretty stark. In a talking filibuster, there can be no doubt who is obstructing business. Especially if its a relatively uncontroversial bill or nomination.


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