Counting Filibusters and Getting Reform Right

Longtime filibuster opponent Hendrik Hertzberg encountered a pretty good Michael Tomasky item on the Reid/Merkley/Udall reform package which wondered whether getting rid of the motion to proceed and forcing talking filibusters would be worth the bother, and was puzzled. Sure, Tomasky eventually concluded that some reform was better than none, but Hertzberg thinks it’s obvious (his emphasis):

For the past three years, as I noted in that last post, the Republicans have been firing off filibusters at an average rate of a hundred and twenty-nine per year. That comes to very nearly one filibuster for every single goddam day the Senate is in session.

However, if the filibustering senator or senators must actually filibuster—if they must stand up on the Senate floor and talk till they’re blue (or, more likely, red) in the face—how would it be possible to keep up the one-a-day pace? How could there not be many fewer filibusters than there are now? And how could that not be a very Good Thing?

Arghhhh….

First of all: cloture petitions — and that’s what he’s using for this count — are simply terrible measures of filibusters. They may be the least-bad measure, to be sure, for some purposes. But in this case, cloture petitions massively underestimate the total number of filibusters. In a true 60 vote Senate, which is pretty much what we’ve had since 2009, every single measure is being filibustered. Every single bill. Ever amendment to every bill. Ever nomination. That’s true whether or not there’s any actual delay at all; simply insisting on 60 is enough to make it a filibuster. And since November 2008, Republicans have insisted on 60 for almost everything.

But second of all: if “a filibustering senator or senator…must stand up on the Senate floor and talk till they’re blue” — they’re obviously not only stalling whatever it is that’s on the floor at that point, but they’re also stalling every other piece of Senate business. Hey, I’ll add emphasis of my own: as long as the talking filibuster is going on, it blocks every single bill and nomination.

Which is precisely why talking filibusters died: they are bad for the majority party, not the minority.

The goal isn’t to reduce cloture petitions! The goal is to allow the Senate to function better. And it’s not just about 60 vs. a simple majority; it’s also about being able, among other things, to rapidly get through non-controversial measures (including, yes, nominations).

And part of this, the part I’m most worried about right now, is that while partial reform (as Tomasky argues) is probably better than none, there are only so many shots at this — they should try their best to get it right. They may not be able to because they don’t have the votes. But they really shouldn’t fall short because they’re attached to some fantasy that if only the minority were forced to explain their position, they would be forced to give up. That’s just not going to work.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.