Thursday, March 7, 2013

Rand Paul and the Merkely Plan

No, Rand Paul's filibuster wasn't, as Josh Marshall thinks, "the best argument of the need for reform" -- and particularly, for Jeff Merkley's idea that current successful filibusters (that is, those where cloture should not be invoked) should become talking filibusters.

Suppose, for example, that the Merkley plan went into effect this week. And suppose Democrats nonetheless brought up the Halligan nomination. The cloture vote happens, and fails, since every Republican but one opposes cloture. Under the new rules, that triggers a talking filibuster.

What happens next? Republicans must decide whether they want to do it or not. What does yesterday's events tell us? It's a terrific opportunity...for the Republicans! The press absolutely loves talking filibusters! Sure, they might not if it became a regular thing (as Kevin Drum points out in an excellent post), but for now it is. Republicans would be prepared for this; they would organize it carefully, tag-team style, as both current Senate rules and Merkley allow for.

As for content...I'm far too modest to give myself a catch of the day, but I've been saying for years that a modern talking filibuster would be fueled by the endless resources of the internet. Which Rand Paul proved to be true by reading, not the phone book, but blog posts and articles. Republicans filibustering against Halligan would have plenty of stuff to choose from in the conservative blogosphere, and you can be certain that with the incentive available that their material could be read on the Senate floor, both professional and amateur bloggers would be happy to crank out more and more about what's wrong with Halligan, and why filibusters are good things, and how important the DC Circuit is and how much Halligan could destroy America if she was on that panel, and on and on and on.

The incentives for doing it are considerable; if they don't back up their cloture votes with the newfangled talking filibuster, then the 60 vote Senate is dead and they lose a ton of influence. And after all this specific nomination is, in fact, substantively important.

So if Merkley is in effect, the Halligan nomination is still on the floor and the Senate never even gets to the Brennan nomination yesterday.

Or, most likely, today. Or tomorrow.

Gaming these things out is sometimes tricky, but it's pretty easy to see what happens next in some ways. Liberal newspaper editorial boards -- the ones that already had editorialized for Halligan anyway -- deplore the continuing filibuster. But the conservative media absolutely love it. They pick out conservative heroes of the filibuster -- indeed, the sudden possibility of become the darling of Fox News and the rest of it makes scheduling the filibuster relatively easy for Senate Republican leadership (if Harry Reid keeps the Senate in all night, it's easy to imagine volunteers eager to do a four or five hour graveyard shift, knowing that they'll certainly get plenty of conservative media coverage and with a good chance they'll even get positive coverage in the neutral press).

Now, I realize there are differences of opinion about how long this can go on. But if the Republicans can keep it up through the weekend...well, they still haven't done Brennan. They haven't done a CR, either, and by Monday the calendar is getting tight to pass something and reconcile it with the House and then pass that, too -- especially since if they do try to pass a Democratic version it is subject to a filibuster, and that filibuster could go on for days. They're not getting anything else done, either: no other nominations, no legislation, nothing. They still have (presumably) two days of the Brennan nomination to get through.

To be sure: at some point, whether it's Day 3 or Day 6 or Day 10, it may become more difficult for the GOP leadership to schedule Senators. The celebrity for doing the graveyard shift, if Reid does keep them in overnight, is going to be a lot more appealing to the first Senator to do it than the fifth.

But the rewards are terrific, as well. An extended talking filibuster on one judicial nomination is really a filibuster of every single judicial nomination; after all, all that time spent talking about Halligan is time that the Democrats aren't bringing up any other judges. Nor are they bringing up executive branch nominations. Or immigration, or gun legislation, or minimum wage.

There are 45 Republican Senators, 44 of whom appear to have opposed cloture on Halligan. Even if Harry Reid keeps the Senate going 24 hours a day, that's basically half an hour a day per Senator, or a bit under four hours a week. Is that really all that much of a burden? Granted, if the positive need for 41 is part of the reform they would have to stay in town to make sure they have 41 every time a new cloture vote is called, so they lose weekends home in the district even if they're not scheduled to speak. But again: the incentives to hang in there are just very, very, strong.

And meanwhile, the White House is increasingly upset if Brennan and other cabinet picks aren't being confirmed. The deadline on the CR is approaching. Bills are ready to come to the floor. The majority actually wants to get things done! But instead, they're forcing Republicans to continue talking if they want to block one nomination...but as a bonus, they also get to block absolutely everything else on the Democrats' agenda.

I really just don't see how that's a win for the majority.


  1. Ok. That's your story. You get points for sticking to it. I remain skeptical.

    Filibustering for hours to protest the legitimacy of drone strikes against American citizens is one thing. Spending days protesting an appellate court judge seems like quite something else. I would think even enough right-wing-blog content would be hard to come by.

    And suppose they did keep talking through the CR deadline. The government shuts down. And the GOP is still (after day X) filibustering a judge?

    How does that end well for them?

    1. Ach, I was going to include that and I forgot. All they have to do is with 48 hours remaining agree to suspend the filibuster to switch to the CR (which Merkley would allow). By waiting until then, they wouldn't be putting a government shutdown at risk...but they would put heavy pressure on the Democrats to accept the House CR as is, given how little time remains to work out a deal.

      I think you severely underrate how easily GOP-aligned media can stir up excitement for any issue. Appeals court judges are *much* easier IMO than the drone thing, which after all actually splits Republicans.

    2. But drones are a good way to embarrass Democrats and also get libertarians and progressives on their side. You think everyone's going to get that excited about "this appellate judge once disagreed with the NRA a couple of years ago"?

    3. Aidan, let me introduce you to Couves.

    4. Scott, you've got to pick your battles. Part of Rand's political brilliance was knowing how to do just that.

  2. I do agree with all your points here. For me, all that means is that the filibuster is removed entirely. That I think is where this eventually ends, just like eventually the DH will come to the NL (even though I hate the idea). It may not happen in the next 4 yrs of Obama's term, but with no relaxing of the 60 vote requirement so far this year, even after a crushing election defeat for Republicans, then it appears the 60-vote senate is here to stay. Therefore, eventually, to get something done either Harry Reid, or a new majority leader 4-6 yrs from now will just remove it, and the Senate will return to majority rule body.

    I know you don't want this to happen, but I can't see how to get Republicans to return to pre-2008 norms (or pre-94) to allow the senate to function. Unless they really think Reid will get rid of it entirely and then behave, but I guess they really wouldn' t have much of a problem with that given how much they'd like to roll back the social safety net when they eventually get back into power.

  3. But, but, but...They're going to block absolutely everything else on the Democrats agenda ANYWAY!

    Yeah, Brennan did get through, but I think that national security-related nominations are going to be the the rare exception.

    1. I know it seems as if Republicans block everything, but it's not true. Lots of judges and exec branch nominations were confirmed in the 112th Congress. They even passed a few laws.

    2. But weren't they all subject to the 60-vote requirement and therefore filibustered? How many passed with less than 60 and cloture wasn't filed?

    3. It's true that the current senate gets some, minimal, business done. But it's only the business that the two parties agree on.

      That's another problem with the talking-filibuster-is-bad-for-the-majority thesis. The work that gets done is supported by both parties. If the minority stop ALL business to thwart the majority, then they kill their own agenda as well.

      The minority can already thwart the majority. Under a talking-filibuster they could stop all business (assuming it could be maintained forever - which I doubt) or choose to stop none. But both outcomes are worse for the minority than the status quo.

  4. You seriously think the media is going to get as excited about a talking filibuster for CAITLIN HALLIGAN? Do you really think the GOP feels so strongly about everything they've painlessly and silently filibustered that they would commit to doing that every day? I think it gets them to drop some of their more trivial challenges.

    1. I'm on your side. The talking heads at Fox don't have anything else to do except say what someone tells them to say. Politicians are different beasts entirely. It's also unfair to compare the devotion the Paulites have for their ideas to your average Republican blogger.

      Besides, the easiest answer is the one right in front of your nose. If talking filibusters were so great for the minority, why is this the first one in eight years or more?

      If the free limelight were so great, wouldn't they be doing this day in and day out already? There isn't anything stopping them!

    2. Good question! But mostly, I think they just didn't think of it.

  5. I see your point but aside from completely getting rid of the filibuster (which I wouldn't mind except that I generally don't like to hope for things that have no chance of passing), I still think a talking filibuster would be a big improvement. I think part of the problem is that these current filibusters happen and no one knows about it. It's become a daily event. A talking filibuster, in addition to being physically harder than the procedural filibuster now, will garner more attention from the rest of Congress and the public, especially as the media will (I think) start writing stories about what/why the filibuster is happening. Yes, they have more material to read from conservative blogs but honestly, only a handful of people are going to listen/read/watch even snippets of the filibuster speech so I don't think what they say matters much, even now. (I'm willing to bet only a handful of people even know what Rand Paul was saying so he might as well have been reading the dictionary aloud.) Also if they're holding up the entire functioning of government in such a visible fashion, the public will start to notice; I don't think there's any way there would have been 400 talking filibusters in the last Congress. Talking filibusters have a much higher opportunity cost and as a result, would become rarer.

  6. Contrary to Aidan above (and a few others), I don't see a talking filibuster requirement getting the Republicans to "drop some of their more trivial challenges". Rather, its the trivial things like Caitlin Halligan's nomination that are going to be filibustered within an inch of their (shelf) life.

    The reason has to do with our host's astute observation about what the hell would Boehner do after he got the speakership. Boehner's constituents (and also McConnell's) want: low taxes, balanced budgets, and the elderly and military taken care of. As Jonathan pointed out back then, how do you square that circle?

    From a professional survival standpoint, the best way is not to try. As a result, we should expect the Republicans to latch on to some meaningless Caitlin Hannigan thing and run out the clock by ginning up the controversy far far beyond its normal parameters. Even C-Span would turn the cameras off after a couple of days, which would be just fine for the Republican Senators.

    What's the alternative? Talking filibuster of some high profile omnibus spending bill that contains tax increases linked to Soc. Sec./Defense solvency? Everyone would pay attention to that, and the Republican senators wouldn't like that at all. The rants from the right wing blogosphere would ring especially hollow under those klieglights.

    So Caitlin Halligan seems a tempest in a teapot? That's the idea!

  7. I have other dissents, but one point is we can't really judge how this episode would have gone based on the current conditions, and just magically turning on Merkley's reforms in early March. They would have been enacted in late January, and hence events since then likely would have had different outcomes. How would Hagel have played out? Would McCain and Graham have followed through on a talking filibuster? Sure there's endless raw blog material out there about Hagel they could have used, but what specifically would they have been expecting to achieve? Just delay? And how long would the folks in their camp--Ayotte, Inhofe, etc.--help them out, or even continue cheering for them? I guess with the President's Day break they could have scored about the same delay they ended up getting, but that would depend on Reid. He could have held the Senate in session over that weekend, pushing 41 GOP Senators to stay if they wanted to keep it going, while most of the Dems could go home. These filibuster reforms do allow for a bit of Majority strategic hardball, when gamed out properly.

    And then there’s the Sequester filibuster. The Sequester is the one we *know* they were not going to give in on, so maybe their calculus would have been entirely different from the start, and they let Hagel have his vote two weeks earlier. That's a changed landscape for the Brennan nomination and the Halligan filibuster. Bottom line, we don't really know how they would have gone.


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