Let’s Not Talk About It – The Mendoza Line
Filibuster reform is on the agenda. Since I’ve talked at length about my frustration with the modern Senate (with the filibuster as the worst offender), I wanted to make a couple of points here.
First, I want to make sure to register my disappointment with the scale of supposed ‘reform.’ For all of the back and forth about talking filibusters and what precisely they can be used for, and so on, it’s just worth mentioning that no one seems to support the most basic (and best) type of reform. Namely: if 51 Senators support a bill, it passes.
Our system is full of veto-points already and I just don’t see the value of imposing a supermajority requirement in the Senate. It’s already an anti-democratic institution, which grants far more power to citizens who live in small states than those who live in more populous ones. When you combine that with the House, a president who can veto, and the severe restrictions on the power of the national government imposed by our federal system, you’ve got a bunch of gum in the works already.
In the long term, I have a hard time believing that the de facto 60-vote requirement for bills getting out of the Senate has any chance of lasting. It’s an artifact of the past two decades and unsustainable in the long term. Given that, I support getting rid of the incoherent interregnum and simply doing away with it immediately.
But if you’re looking for halfway points (as the Democrats in the Senate appear to be), the ‘talking’ filibuster is really not the way to go. The notion that forcing them to talk will somehow improve things seems to rest on a fundamental misunderstanding of the difference between filibusters-for-delay and filibuster-as-de-facto-supermajority-requirement.
To explain: the romantic version of the filibuster (Mr. Smith, Sen. Stackhouse on the West Wing, etc.) is all about one person trying to hold up business by refusing to stop talking. That is: they talk in order to shut down the normal order of business – to make a point – to delay. The goal of the modern filibuster, however, is simply to prevent bills from passing.
Making people talk will have zero effect on their ability to achieve their goal (preventing the bill from passing). Not only that, it will eat up floor time – which is actually kind of important. The whole reason the Senate adopted ‘dual tracking’ was to enable the majority to get on with their business while the minority was filibustering one bill.
Forcing ‘live’ filibusters just returns things to that state of affairs. The minority gets to eat away valuable time that could have been spent on other things. Again, it’s not a Jimmy Stewart situation. It won’t be one guy standing there for months. It will be a rotating cast of 40+ people, all happy to take a turn on the stage for an hour to recite ttalking points. They will have no shortage of stuff to talk about, and even if they all repeat themselves, who cares? Meanwhile the majority has to sit there while the cameras endlessly film the opposition.
Why this is supposed to deter filibusters, I have no idea. For a far more extensive discussion of what would happen, see this excellent post by Jonathan Bernstein.
The basic problem here is that it all ultimately comes down to what it actually takes to pass a bill. If you’re not willing to change the 60-vote requirement (that has become the de facto rule in the last couple decades, and particularly in the Obama administration), then any other change is going to be pretty meaningless.
That said, here’s my personal filibuster reform idea: when you file cloture, you count the Yes votes. If you get more than 50%, those votes are then banked for the rest of the Congressional term. At any point, the majority leader can attempt to ‘end debate’ on the bill, and the minority is responsible for getting the 41 votes together to prevent cloture.
The effect: you can indefinitely filibuster something if you really want. But in order to do so, you have to commit to keeping at least 41 votes in DC at all times. You want to kill the bill? You can do it, you just don’t get to go home to see your constituents.