Monday, January 7, 2013

A Live Filibuster Plan Even I Could Support

This one is about the third plank of the Merkley/Udall reform package: reducing post-cloture time on nominations. I'm for it, but would do it in a slightly different way than they do.

Why is there 30 hours of post-cloture time? I mean -- why is there any post-cloture time at all? I don't really know, but I assume that it was originally a concession to those who opposed the cloture rule, and it was justified on the basis of protecting the right of Senators to speak. I do know (from Greg Koger's book) that the 1975 reform that set cloture to 60 Senators included 100 hours of post-cloture time, and the amount was reduced to 30 in 1986.

My impression is that most of the time post-cloture time is yielded back; certainly, no one actually talks for 30 hours after cloture has been achieved. However, the threat of chewing up 30 hours is certainly part of why filibusters are so successful; the total time that even a handful of Senators can use or threaten to use (waiting for a cloture petition to ripen, actually taking the vote, waiting out the 30 hours) is enough that it can derail a lot of relatively low-priority nominations -- not to mention legislation, where there are even more opportunities for delay.

So in general, I think that further limits on post-cloture time are a good thing, and I'm happy to see it in the Merkley-Udall package. I think I'd do it a bit differently, however. The reformers would simply reduce post-cloture debate time to two hours on all nominations except for Supreme Court nominations. What I would do? This is the place where a live filibuster requirement actually does make sense -- I'd keep it at 30 hours, but use it or lose it. To actually make this work, I'd suggest using the rules Merkley drafted for a talking filibuster -- basically, changing the Senate rules for that situation only in order to force the minority to keep talking or have to yield back the time.

Why not just go with the two hours? Because I really do believe strong minority objections should have some leverage. Not too much, but some. As I've argued many times, in my view Merkley's (pre-cloture) talking filibuster would not work because the rewards for the minority (keeping the 60 vote Senate) are so strong that they would surely go through with it. That's not going to be the case with the post-cloture 30 hours; Senators would only use it, and perhaps only have a believable threat to use it, when they really cared about some point.

A more general point...I fully agree with those who believe that the current Senate is dysfunctional, and badly needs reform. But what's really most out of whack isn't that there's too much leverage for single Senators or small groups of Senators; it's the ability of large (41-49 Senator) minorities to fully block things. Now, I do think that single Senators and small groups have acquired a bit more leverage than is healthy, and so I don't have anything against reforms to nudge that back a bit. But generally, I think that Senate rules shouldn't overly empower the party caucuses and party leadership at the expense of individual Senators.

In the event, there's probably very little difference between two hours of post-cloture time and a use-it-or-lose-it 30 hours (I should be clear -- I'd apply use-it-or-lose-it to all post-cloture time, not just nominations). Either way, it would make it a bit easier to process nominations through the Senate floor, especially those that are not controversial; either way, holds would still be effective because they would still carry the threat of significant delay. So I'd do it the other way, but I have no real problem with the Merkley/Udall approach.


  1. Don't strong majority objections already have a ton of leverage? Except for "Superbill"*, you almost always seem to support changes that are weaker than even the weak tea stuff the Senate is already considering.

    *Superbill itself seems like a bad idea to me - we should not be encouraging the idea that all legislation in a session should be passed in a single, take it or leave it, bill - that this is already happening is a symptom of Senate dysfunction, and increasing that tendency would not be a cure for it.

    I still think that a good first step would be to return the cloture rules to requiring 3/5 of members present and voting, rather than 3/5 of all senators.

  2. I suppose simple majority cloture on exec branch nominations. That's a much stronger reform than what Merkley/Udall want. I think "except Superbill" is unfair; Superbill, in my view, would do a lot more to break the 60 vote Senate on legislation than anything Merkley/Udall are for (although not as much as what Harkin wants).

    On the other point, I think that's a fair critique of Superbill...but my hope would be that once there's a clear outlet for intense majorities, partisan minorities might be more inclined to give up (losing) filibusters on other bills. But it might go the other way, and I agree that's not a good thing.

    1. Yeah, I’ve been thinking about the implementation of Superbill! since your last reply to my comment about the unintended consequences.

      I actually had the mistaken impression that it would be limited to 5 or 6 bills. But even when the majority has the ability to put any and all bills for the year into Superbill!, I don’t think the minority will limit its obstruction much.

      That’s for two simple reasons:
      1) By using the filibuster on all solo bills, the minority might be able to force multiple disparate measures into Superbill!, likely jamming up the Majority Leader’s tactical maneuvering space within his own caucus. (And if he declines to fold them into Superbill!, many of the multiple silent filibusters will prevail anyway.)

      2) The minority would certainly enjoy the chance to amend each and every one of those measures now in Superbill! with only 51 votes. Some amendments would be serious and policy-oriented, giving them real leverage (not a bad thing, but better to have them buy in earlier, so you can actually discuss and hammer out compromises), and some would be embarrassing poison pills.

      Wouldn’t these two possibilities used together amount to even greater minority influence than exists now? They’d basically have the power to obstruct in the manner they are accustomed to, or throw your entire agenda wrapped up in one big ball off a cliff, to see if it bounces or shatters.

      And then there’s the possibility of a hostile House and/or White House. In many cases, Superbill! may just not turn out to be worth the time and effort.

      Given that potential landscape, the Majority Leader may actually value moving bills in a more classic, orderly way, to preserve messaging clarity on the measures themselves, and to builda narrative about the minority’s obstruction throughout the session. They could still use Superbill! towards the end of the year, but maybe only for 1-3 measures.

      Also, I think that the Reconciliation precedent is not a good one to build on. It seems to me that it’s been a significant contributor to the modern perception that 60 votes are necessary, and 50 votes are a special circumstance.

      But I agree that the approach is a sound one. It’s virtually impossible to recreate extinct norms through new rules. So providing new incentives for members to consider simply returning to norms on their own, or to create new positive norms, is probably all we’ve got.


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