Thursday, January 24, 2013

It's Weak, But the Reid-McConnell Filibuster Reform Package Is More Substantial Than You Think

Depressed about the newly announced filibuster reform deal? You're in good company. Even though it will likely pass in a landslide, it apparently pleases no one--especially those who were hopeful that at long last, the political stars were aligned to truly change the senatorial institution which has so often stymied progressive (and some non-progressive) causes.

Well, fear not. True, this legislation will do little to change the fundamental of the Senate--but, truthfully, that was never a significant possibility. Even the most ardent reform advocates were pushing for changes which were little more than theatrics. And, quietly, this reform proposal would chip away at the Senate's institutional culture of stagnation.

The meat of the bill would reduce the amount of debate required for a bill or nomination which has already passed the filibuster hurdle. It would also make it easier for the majority leader to bring a bill or nomination to the floor--either by striking a deal with the minority leader a bipartisan group of 14 other senators, or by ensuring that the minority will have the opportunity to offer a limited number of amendments. (Under normal order, the majority leader controls amendments.) The bill could still be filibustered when it comes to the floor.

The overall package would grease the wheels of the Senate without exactly changing them. That may not sound like much. But in today's Senate, the ability to halt action--especially through senatorial holds--is a significant lever of power. Reducing that lever's effectiveness is a significant procedural reform.

Holds have power because even if a bill or nominee has 60 votes behind it, it's currently a tremendous bother to bring it to the floor and get it passed. Thanks to four-day weekends--which senators defend like they're mint issues of Superman #1--floor time is a precious, valuable commodity. Much has to be conducted through unanimous consent--which means that any senator can stop it just by speaking up. The end result is that by threatening to gum up the works, even just a little, a senator can become king (or queen) for a day, and have his or her grievances heard by the majority leader, or the White House.

This sense of entitled royalty has become an ingrained part of the Senate culture. It's lead to the rise of "tantrum" holds -- objections which have nothing to do with the matter under consideration, but are simply a way for the objector to have a day in the sun.

Chipping back on the opportunity to delay a bill does nothing to change the super-majoritarian nature of the Senate. But it could go a surprisingly long way towards making it a more workable legislative body, and for reducing the ways in which a rebellious Senate minority can hinder the chief executive's ability to function.

Of course, reformists wanted more. Some of them wanted to see the filibuster gone--or at least significantly pared back, perhaps to a lower voting threshold. But--despite the energy towards reform--that was never seriously in the cards. What was in the cards was the "talking filibuster," a proposal which wasn't just quixotic, it was downright bizarre. For reasons that have more to do with building a consensus than logic, reformers such as Sen. Jeff Merkley (D-Ore.) have decided that forcing minority members to squawk until they drop was the hill that everyone had to die on.

Currently, a gentleman's agreement--accompanied with rule changes about 40 years back--allow senators to filibuster even if they are not physically debating on the floor. Using post hoc, ergo proctor hoc logic, reformers claim this is the reasons that filibusters have gone from an occasional nuisance to a de facto requirement to have 60 votes to pass anything.

Ultimately, this argument is appealing because it is a (relatively) easy-to-understand point in an otherwise densely complicated debate. We all remember Mr. Smith's passionate, obstinate stand against corruption. Students of history remember Strom Thurmond's infamously dehydrated stand against racial integration.

And pushing for "talking filibusters" avoids the stark, difficult choice of whether to keep the filibuster entirely.

Ultimately, the argument rests on presumptions about human nature--how senators will respond to a new scenario which doesn't create new concrete incentives, but rather will introduce emotions that, supposedly, will change how they behave. Embarrassment? Shame? Exhaustion? It's not exactly clear.

This is a presumption which I find to be rather flawed.

In an age where senators routinely give speeches to an empty chamber in order to get on C-SPAN, are forced talk-a-thons really such a threat?

In 2010, Sen. Bernie Sanders, the irascible independent/socialist senator from Vermont, voluntarily spoke for nearly nine hours to protest an income tax deal. Did he pay a political price for it? Hardly. His speech was later published as a best-selling book.

The basic idea behind this is that talking filibusters will be such an inconvenience to the filibusterer, he or she just won't bother as much. But this ignores a rather crucial fact--a talking filibuster would be just as inconvenient to everyone else as it would be to the objecting senators. (And we are talking about a group of senators--a single objecting member isn't that much of a problem.)

While this group trades speeches all the live-long day and into the night, no other business would get done. Unless some sort of agreement could be reached, Congress would come to a standstill. It would turn into a staring contest. Who do you think would blink first--the senators deadset against this law or nomination, or the majority leader, tasks with running the entire chamber? How long until the leader gave up and went to other business? And how many times would we go through this charade until the leader decided that a declaration of intention to filibuster is good enough?

The rise of the filibuster is fundamentally linked to the rise of parliamentary-style partisan politics. And unless you fundamentally change the incentives, you won't be able to get the train back on the tracks.

Reformers were hoping that Reid would use the so-called "nuclear option," a constitutional maneuver so striking it would overshadow any of the proposals currently being considered. (The precedent could lead to eventual rule by strict majority--but that's a discussion for another blog post.) Sen. Al Franken's (D-Minn.) proposal to require an affirmative 41 votes to prevent cloture is intriguing--it certainly would go farther towards eliminating holds--but depending on how it is written, it likely would either be very close to the status quo, or would effectively end the filibuster.

And that's the rub. Any way you slice it, Democrats end up facing a pretty stark choice they don't want to make. Their attempts to have their cake and eat it too either lead to useless half-measures, or equally useless theatrics. Should they keep the filibuster, fundamentally pare it down, or get rid of it?

And, ultimately, they want to keep it. That's the bottom line. Their memories of being in the minority are too fresh. They fought too hard, and endured too many bitter sacrifices pursuing the gains of the 111th Congress to see those gains repealed during a future Republican administration. And, like Republican senators, they're fundamentally fearful of majority rule, worried that the Senate could eventually become just a smaller version of the House.

Anyone in favor of repealing the filibuster must be in favor of it even when doing so would cause immediate setbacks to his or her agenda. Democrats just aren't there yet. Maybe they never will be.

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