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July 13, 2010

Comments

"I'm not sure why so many people believe that the Democratic Senate refuse to deal with the filibuster in a way that is likely to win votes are going to deal with the filibuster in a way that isn't likely to win votes."

Breaking a filibuster once on a big issue will win a news cycle or two. It won't help reelection prospects much, depending on the underlying legislation that passes. Totally eliminating the filibuster would allow the which ever party wins to actually implement the policies that they run on.

Is there any good reason to keep the filibuster around? I don't believe it helps promote debate. Certainly it doesn't promote useful, insightful debate. As near as I can tell Reid's memo at the top of the threads is correct, in that infinite procedural calls can be used to gum up the works instead of actual filibusters.

"Totally eliminating the filibuster would allow the which ever party wins to actually implement the policies that they run on."

It also requires 67 votes, which I'm pretty sure the Democrats don't have.

It requires 51 votes at the start of the new session of congress. Voting on the rules at the start is not filibuster-able.

According to current Democratic chit chat, maybe. That isn't what Byrd, now dead I know, thought. And he was both thought to be one of the most knowledgeable parliamentarians and was rather in-the-know on the topic of filibusters.

Link for that? That sounds more like what he thought about the nuclear option.

But the senate rules cannot bind future senates. If the next senate votes 51-50 (using the VP) to eliminate the filibuster at the start of the senate, how can that possibly violate senate rules? It would break with tradition, in which the senate considers itself a continuos body, but certainly not with any actual law. Given that the senate has locked itself into a locked up state, a reboot of this nature isn't a horrible idea.

It would be nice to see an actual defense of the filibuster if you are opposed to eliminating it.

edit: Looking around, I can see Byrd calling the elimination of the filibuster a bad idea, but certainly not him calling it impossible. But even if he did, he's clearly wrong.

Allegedly, according to Senate Rule XXII, rules changes can be filibustered.

See Senate report here.

You are probably referring to "Since resolutions to change the rules are subject to filibusters and cloture requirements, reform
efforts often involved attempts to establish precedents via rulings from the chair that would enable a
simple majority to invoke cloture on proposed rules changes at the beginning of a congress. The only
time that such a precedent was established was during the reform attempt of 1975, but the precedent
was later reversed by a vote of the Senate as part of a compromise."

You can read about the genesis of the theory that a majority could end the filibuster at the link I provided. Frankly I would think that hyper-parliamentary games are going to look worse than just making the filibuster happen. If Democrats are so freaking afraid to stop the filibuster through the normal means--and clearly they are--I don't see why you believe that they will play games with the rulings from the chair.

Now maybe they think that American public will be more impressed by such things than with the direct approach?

I don't think that games matter. The public doesn't care about the games.

Quoting the rules about how the rules can change doesn't affect anything. Every new session, the senate has to vote on the rules that will bind it. Traditionally, they agree to just keep going, yes. But there is no constitutional reason they can't change that. It's only a matter of decorum.

The only people who would care would be republicans. But big deal, the republicans would be obstructionist. It's not like right now the republicans aren't deliberately slowing the passage of unemployment insurance extensions, for example. Would the public be more upset at republicans for endless quorum calls than they would at denying universal consent to just end the cloture ripening? Both strike me as pointless political tactics that the public doesn't care about.

Here's how I see it. Any of these political games are basically pointless in affecting public perception. What drives public perception is primarily how their own personal position is going. If wages are up, they'll vote the incumbent. If they can't find work, they'll vote for the challenger. There's a huge amount of evidence that this is basically correct, as well.

Political rules that interfere with the majority's to implement their will are bad because then the minority has a huge incentive to block the majority. If they block the majority from doing things, especially things like unemployment insurance, then its more likely they'll be elected. Thus, things like the filibuster or holds on nominations are bad for the system as a whole because it incentivizes bad behavior.

Will the democrats actually do any of this? Probably not. They never miss an opportunity to miss an opportunity. That doesn't change the underlying point, that legislative veto points like the filibuster are really bad for governmental accountability.

I don't see how your solution works better. Breaking through a filibuster once won't change the underlying dynamic. Republicans will still have every incentive to slow down all legislation. They might lose a new cycle, but news cycles don't drive public opinion.

"I don't see how your solution works better. Breaking through a filibuster once won't change the underlying dynamic. Republicans will still have every incentive to slow down all legislation. They might lose a new cycle, but news cycles don't drive public opinion."

Your explanation doesn't explain how under the current rules (which you don't like) but under which filibusters actually occurred and were sometimes brought down by attrition, there were fewer filibusters, while also under the very same rules (which you don't like) but under the modern majority response of never actually forcing a filibuster, filibusters are much more common.

Look at it from the other side.

What if we said there was this technique to slow down legislation that doesn't have a super-majority. Let's call it Phone-Book. Under the rules of Phone-Book, the minority can use Phone-Book any time it wants to, but the majority can threaten to force the minority party to do so very publicly and in a very time consuming way that will dramatically illustrate the fact that they are merely obstructing. If the majority party carries out its threat wisely and judiciously, the minority party can't over-use Phone-Book because it will appear to swing-voters that the minority party has no useful ideas and is merely being obstructionist.

But if the majority party never ever ever ever ever ever ever carries out this threat, it becomes increasingly easy to use Phone-Book on more trivial matters until it becomes routine. The minority party *no longer has to choose its battles*. Instead of using Phone-Book on narrow issues where it believes it can gain swing voters based on a true division in the country that the majority party isn't paying sufficient attention to, it can now use Phone-Book for everything.

Breaking through the filibuster once changes that dynamic. Right now Republicans think they can filibuster *anything whatsoever* because they will never be called on it. You aren't making them choose to use the filibuster only on issues where the swing voter might agree with them--i.e. cases where the majority really should pay more attention to the country as a whole.

"Your explanation doesn't explain how under the current rules (which you don't like) but under which filibusters actually occurred and were sometimes brought down by attrition, there were fewer filibusters, while also under the very same rules (which you don't like) but under the modern majority response of never actually forcing a filibuster, filibusters are much more common."

There are two sets of rules that you are combining into one. When filibusters occurred occasionally, but actually involved a filibuster the senate was working under a different set of rules.

http://voices.washingtonpost.com/ezra-klein/2009/11/how_robert_byrd_jr_created_the.html

And again, now, a filibuster would involve endless quorum calls combined with lots of other procedural motions (to generate new business to again allow for new quorum calls). Quorum calls don't count against your two times to speak, motions to adjourn are always in order, etc. It would not involve the endless speaking that you seem to believe it would.

Moreover, swing voters don't respond to procedural gimmicks. Assuming swing voters actually exist, the best evidence is that they respond to pocketbook issues. They respond to how their wages changed, or how the price of food and gas changed much more than arcane senate procedures.

Put another way, right now, the republicans are denying universal consent to allow cloture to ripen prematurely on the very bill you think they wouldn't be willing to block. Are they paying a price for this obstruction? Do you have any idea which senator denied universal consent? Any evidence that swing voters are being affected by this obstruction to vote against democrats? If not, why would a different parliamentary tactic be different?

Is there any evidence that actual filibusters affected voters when those occurred? Did Strom Thurmon pay a price for his obstructionism?

"Are they paying a price for this obstruction? Do you have any idea which senator denied universal consent? Any evidence that swing voters are being affected by this obstruction to vote against democrats? "

I don't, and because they can do it in a simple vote instead of hours and hours of speaking publicly most voters don't either.

"If not, why would a different parliamentary tactic be different?"

Because real filibusters require hours and hours and hours of talking publicly about it in a way that is highly amenable to youtube/television mocking.

Why do you think they are the same?

Because I don't think anyone would care about a youtube video. Certainly not one more than 30 seconds long. So you have a video of huey p long reading Shakespeare on the floor of the senate. It gets a bunch of views. Heck, maybe the democrats win a few media cycles. But come election day, what matters is if the jobs bill passed or not and if it actually improved jobs, not the fact that you have a mocking video.

I mean, the daily show has been around for a long while, mocking all along. Did those clips drive election results?

At best, you are hoping for a macaca incident. But the best cover for that is to not actually debate, but to do something pointless like read the phonebook. But if the incentive is to not debate at all, and even when the filibuster was used, it wasn't used to extend debate, then what's the point of keeping it around?

And again, you won't have senators reading the phonebook, you'll have endless quorum calls, motions to adjourn, etc. The stuff that will not be of interest to even those who care about politics.

But that kind of stuff is easily mockable because it has to be public. "We wanted to pass unemployment and they wanted 5000 roll calls."

But that's the current situation. It isn't hurting the republicans.

No it isn't, because they aren't actually being forced to do anything that is easily mockable. All they have to do is not vote for cloture.

Because real filibusters require hours and hours and hours of talking publicly

i thought it was pretty much settled that hours of talking isn't necessary. you just need one Republican to sit there and note the absence of a quorum. no ?

Right now, Tom Coburn is speaking about how horrible it is to steal money from kids to pay for the UI. The very thing you think republicans won't do is happening right now. He's not voting against cloture, he's speaking to delay cloture ripening, ie he's speaking to keep UI from passing for 30 hours. Where are the YouTube clips or the outraged swing voters?

And yes cleek, I'm pretty sure that's correct.

"i thought it was pretty much settled that hours of talking isn't necessary. you just need one Republican to sit there and note the absence of a quorum. no ?"

No. That hasn't been established and is in fact wrong when you are forcing a filibuster.

The steps again would be:

1) Get 51-59 Democratic Senators in the Senate
2) Call a vote for unemployment benefits
3) Republican obstructer wants to continue debate
4) Check to see if he has spoken twice already, if not immediately give him the floor
5) When he is done go to step 2.

Quorum call are appropriate when new business is available or when a new person speaks. If they want to just roll quorum calls, they lose their chances to speak, which ends the filibuster even more quickly. The quorum call could be part 4a if Republicans wanted to, but they have to have someone available to speak. No speaking means you just move back to the underlying vote. You don't get to just ask for a quorum call every 2 minutes or something.

"Right now, Tom Coburn is speaking about how horrible it is to steal money from kids to pay for the UI."

Making a short speech and filibustering for days are completely different. You're the one who is insisting that they are identical in political terms. I don't see why we should think so. Republicans certainly don't think so. They don't actually filibuster.

you just need one Republican to sit there and note the absence of a quorum

I'd like to get some verification of this, as referenced to the rules. If this were true, all you'd ever have to do to obstruct is note absence of quorum. All day, all night.

I realize that someone who should be in the know about these things has claimed this, but it seems a little too trivial to be true. If it is true, it's horrible, rules-wise. I mean, if you just did a headcount, and no one had left, you still have a quorum, no?

You could always C-SPAN the incessant quorum calls, too. You don't think that would be embarrassing, having a nearly full chamber and having people incessantly noting absence of quorum?

Maybe not embarrassing enough. Certainly that's a possibility.

quorum calls don't count against your two times to speak.

Rule on quorum calls says:

1. A quorum shall consist of a majority of the Senators duly chosen and sworn. 2. No Senator shall absent himself from the service of the Senate without leave. 3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. 4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.

Looks like open season on quorum calls, there.

Slartibartfast, the senate is really designed to run on everyone getting along, universal consent being a good example. If you don't have UC, everything takes forever. Every bill, amendment, etc, must be read in full. If everyone agrees that its a waste of time, things can go faster, but right now, the republicans are interested in burning time.

also
"In recent practice, the Senate considers that being recognized and engaging in
debate constitutes a speech. The Senate, however, does not consider “that
recognition for any purpose [constitutes] a speech.” Currently effective precedents
have held that “certain procedural motions and requests were examples of actions
that did not constitute speeches for purposes of the two speech rule.” These matters
include such things as making a parliamentary inquiry and suggesting the absence of
a quorum.3 Nevertheless, if a Senator is recognized for a substantive comment,
however brief, on the pending question, that remark may count as a speech. "
http://www.senate.gov/reference/resources/pdf/RL30360.pdf

I'd suspect motions to table, motions to adjourn, etc are all along those lines of not counting as speech.

Its also worth pointing out again the Reid memo in the first reply to this thread. I think Reid is about as inept as they come, but surely he wouldn't flub basic rules issues. Also, the huffingtonpost article quotes a previous senate parliamentarian, who should be considered an expert, agreeing with Reid's conclusions. That's a pretty high burden of proof to counter will just internet lawyering.

"Making a short speech and filibustering for days are completely different. You're the one who is insisting that they are identical in political terms. I don't see why we should think so. Republicans certainly don't think so. They don't actually filibuster."

No, but all the possible bad consequences of filibustering already befall them. Youtube clips can be made. Their actual votes on the bill gets recorded, etc. What extra sort of public action happens when you filibuster that isn't already happening? Why would the length of the speech matter?

"Why would the length of the speech matter?"

Because it is obstructing in a *visceral* way that is immediately understandable by normal people.

"He failed to vote for cloture so we couldn't do anything useful" and "He wasted everybody's time for 12 hours reading from the phone book like an ass so we couldn't do anything useful" are completely different things to anyone who isn't a political junkie.

Yes, we political junkies understand that the general effect is the same.

But in the first case your average voter hears "blah blah, procedural stuff that I can't understand" while in the second he *sees* "wow, those guys are actually going out of their way to waste time".

Your insistence that both of those modes are exactly interchangeable strikes me as shocking.

One is of interest only to political insiders. The other is immediately obvious to anyone you show.

Why would you repeatedly choose the one that only insiders understand?

You are making a strawman of my arguments. Today, the republicans went out of their way to speak to waste time specifically to delay UI. Not made a procedural motion, failed to vote for cloture, or anything else. They specifically wasted time today by speaking to delay passing the bill. Why does this not count under your standard? Its exactly the same. Please address the republicans actually speaking to delay a vote (what actually happened and no one noticed) and not the case of voting against cloture.

I've seen a fair number of calls for Democrats to force Republicans to mount a real filibuster, and one thing none of them mention is that Republicans did this to Democrats back in November 2003, when the Republicans had a majority. That's understandable, because the Republican attempt to call attention to Democratic intransigence was such a flop that most people didn't know about it at the time. The only thing that made in memorable at all is that it gave Democrats an opportunity to make fun of Republicans. From the New York Times coverage:

"The Republican cots, which were wheeled into the room on Wednesday morning before a summoned throng of photographers and reporters, were quietly wheeled out, having never been used by anyone.

Only Dr. Frist appeared to have briefly napped in a cot, one that was ostentatiously placed not in his inner office, which has abundant comfortable sofas and where one might choose to sleep privately, but near the door to a public hallway where it could be seen and photographed."

Pretty weak stuff, I admit. So I don't expect people to know off the top of their heads how forcing a real filibuster has worked out in the past. But I do think, if you are proposing a political strategy, it makes sense to ask, "How have similar approaches worked in the past?" And if you don't know the answer to that question, look it up.

Sebastian: "Once you have confirmed a quorum, you can't request it again unless there has been intervening business."

Senate rule 6 states in part, "If, at any time during the daily sessions of the Senate, a question is raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary of the Senate to call the roll..."

I'm not an expert on Senate procedure, but I don't see any way to square your claim with the text of rule 6. The phrase "at any time" doesn't leave much room for interpretation.

A question is not properly 'raised' just because a Senator wants it to be.

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