Will Merkley & Warren’s “talking filibuster” proposal work?

by Gregory Koger on November 20, 2012 · 3 comments

in Blogs,Legislative Politics,Senate procedure

Last Friday, our friends at Wonkblog posted the comments of two Monkey Cagers on Senator Merkley’s proposed-but-still-vague reform. I thought I would elaborate on whether Merkley’s proposed reforms will help make the Senate more effective…or at least less of a disaster.

First, some background on what the Senate reformers are talking about:  HuffPo says,

The critical component, though, is a mechanism that would force senators to physically take the floor and speak in order to maintain opposition to legislation. The effort to end a filibuster is called a cloture motion. Under the proposed rules, if a cloture vote failed to win a simple majority, the bill would be killed and the Senate would move to new business. But if it won a majority—though less than a supermajority of 60—the bill would remain on the floor for any senator who wished to opine on it. If at some point no senator rose to speak, after given several chances to do so, a new vote would be called—and only a simple majority would be needed to pass it.

[...]

Merkely said that the package he and his allies put together will also include more direct reforms. Reid has suggested simply eliminating the filibuster on the motion to proceed to debate, which would save the Senate many hundreds of hours of wasted time the course of a term. Merkley said such a provision was likely to make it into the final package, as well as restrictions on filibustering efforts to send a bill to conference.


There are two ways to think about this reform, or any others that may be discussed. First, how does this change the filibustering game? And, for which proposals is this most likely to make a difference?

Q1: It could make a difference on major bills for which the pro-bill (or nomination) coalition is more intense than the anti-bill coalition. If we compare four major bills from the 111th Congress, I would guess that this would have been most helpful on the stimulus and banking reform bills, since Republicans—even with more conservative constituencies—may have faced some criticism in their home states for blocking efforts to (respectively) stop the economy’s tailspin and address the cause of the Great Recession. On the other hand, Republicans probably would have lined up all day to stop health care reform and climate change/cap & trade.

But the devil is in the details. One of the key points I make in my book and follow-up commentary is that senators can’t just wave a magic wand and revert to Mr. Smith Goes to Washington-style “attrition” filibusters. There are reasons the filibustering game changed in the 1960s, and the Senate can’t go back unless it is as difficult or more difficult to conduct a filibuster as it is to fight against one. The problem with a classic  attrition filibuster is that a single obstructionist could demand the attention and disrupt the sleep of a majority of the Senate, as Smith does in the movie. That is, the costs of the two sides are asymmetrical, so it is easier to filibuster than to outlast a filibuster. A determined majority could outlast a single obstructionist, or a few senators, but an organized succession of twenty or so senators could occupy the floor one at a time, each demanding the presence of a majority of the Senate. In order to restore attrition filibusters, the Senate needs to balance the rules of the game so that only one pro-bill senator is required to stay in the chamber while an anti-bill senator filibusters.

For example, let’s say a narrow majority votes for cloture and the Senate begins a Merkley-style attrition filibuster..

(1) does post-cloture vote debate have to be germane? Let’s say the bill in question is immigration reform; can a filibustering senator give a twelve-hour speech on U.S. policy in Afghanistan? Or the Petraeus affair? If so, a Merkley filibuster simply grants the opposition a monopoly on C-SPAN to express their political message for the day.

(2) Can a filibustering senator call for a quorum? If s/he does so, does s/he lose the floor? (“Yes” is the current answer) or does a quorum call constitute the end of the debate phase altogether?

(3) What if there are votes on amendments to the bill during the debate phase—does that “end” debate? If not, what if there are hundreds of votes on amendments?

(4) can a senator raise a point of order during the debate phase and request a roll call vote? If so, what if s/he does this dozens of times?

(5) if the post-vote debate ends and there are still amendments outstanding, does the Senate immediately vote on the underlying bill? Or is there a marathon of votes on amendments until they are all disposed of? If the latter, how does the rule prevent a filibuster-by-amendment?

These are questions that can be answered, and I would expect the final draft of the proposal to address these questions. But I merely suggest that designing an effective reform can be tricky.

Q2: Which bills would benefit the most? I would guess that this reform would most benefit major bills that the minority party is willing to block covertly but not overtly. I am still stunned that the GOP did as much as it did to block Dodd-Frank, and if they had to do it in front of the cameras and take time from their fundraising schedules to actually debate the bill, it may have passed much faster. It would also benefit the middle tier of bills that are important enough to merit a cloture vote and floor time provided the opposition is not intense. This category could include legislation like appropriations bills, reauthorization of traditionally bipartisan bills (highway funding, agriculture), and possibly appellate court nominations. These bills would also benefit greatly from the elimination of filibusters against motions to proceed. Obviously, one filibuster against a bill is less than two filibusters but, more subtly, a filibuster against a bill that is on the floor of the Senate can be more politically costly than a filibuster to keep it off the floor in the first place.

The Merkley proposal (as outlined) does less to help low-priority bills and nominations that are not salient enough to merit a cloture vote. For these measures, the threat of a filibuster would still be sufficient to keep them in limbo. This is not an argument against Merkley’s proposal, but it does mean that in order for the Senate to consider these proposals more efficiently and fairly, some sort of expedited cloture process would also be helpful.

{ 3 comments }

Andrew Gelman November 20, 2012 at 11:07 pm

Gregory:

I have a question. I speak here as a complete non-expert on the workings of the U.S. Congress. My impression was that the rules of the filibuster have not been changed much in recent years, but the practice of the filibuster has changed: until a few years ago it was considered that 50 votes were enough to pass a bill except in unusual circumstances, whereas in recent years it has been considered that 60 votes are required. So: no changes in rules, but big changes in practice, thus big changes in what you refer to as “the filibuster game.” So, if no change at all in the rules resulted in a big change in the game, how do you form your opinion about the effects of an actual change?

This is not to say that your above analysis is wrong. I just remain confused about how the changes of the past few years in filibustering have occurred. I’m sure this represents my ignorance, not political science’s, but since I’m confused, maybe some of our other readers are confused as well.

Gregory Koger November 21, 2012 at 2:28 pm

Andrew, here’s a quick overview. First, you are correct: for most of Senate history, filibusters were possible but rare, and legislation could pass the Senate with narrow majorities (see Wawro & Schickler’s “Filibuster” and David Mayhew’s 2003 PS article). This was true even though the Senate had no closure rule (1789-1917) or a loophole-riddled rule (1917-1949) for almost all this era.

How is this possible? The key to understanding the filibuster game is to remember there are multiple responses to obstruction: invoking some closure [closure: a generic term for a rule to limit debate] process already in the rules, changing the rules of the game in the moment, or waiting it out, aka attrition. Setting aside rule-changing, the long period when filibusters were rare coincided with the era when attrition was the dominant response to obstruction. As long as senators could afford to wait out a filibuster, everyone knew that filibustering would mean a long, exhausting, embarrassing fight with little chance for success, so they were reluctant to try under normal circumstances.

It is important not to romanticize this era. In hindsight people often look back on this era as the golden age when senators were better people and adhered to the norms of the institution for the sake of the country. No. No, they didn’t filibuster because it was hard to do, unlikely to succeed, and not worth the anger of their colleagues and scorn of the press.

Then during the 1950s, it became increasingly obvious that attrition was no longer effective. As you say, this occurred without a formal change in the rules. Rather, it was due to several informal changes in the workload and work lives of senators that made sitting in the Senate chamber for days on end prohibitively expensive. After a few years of making do, senators began using the cloture rule as an alternative. Wait, there was a cloture rule just sitting around waiting to be used? Yes. In my view, the Senate adopted its first cloture [cloture: the name applied to the Senate's closure process] rule in 1917 to satisfy public pressure and NOT to actually limit obstruction. Attrition was still working just fine when senators wanted to stop a filibuster–except at the end of a session, but the new rule didn’t really solve that wrinkle.

Once senators switched to cloture as their primary response to a filibuster, they spent less time trying to wait out a filibuster but unintentionally reduced the costs of obstruction to nearly zero. Senators began to threaten more and more filibusters to block nominations and bills they didn’t like, to ensure their rights to speak and offer amendments, or just to extort bargaining leverage on some other matter entirely. That is how the Senate became the 60-vote chamber we know and [don't] love.

The deeper implication is that the “filibustering game” has rules that vary on [at least] three dimensions: 1) an attrition dimension, taking in a whole range of factors that make it easier to wait out a filibuster vs. tie up the chamber; 2) a closure threshold (what % of the chamber is required to cut off obstruction?) and 3) the closure timeline…what are the steps required to cut off obstruction, and how long do they take? Over the last 70+ years almost all the reform energy has focused on the closure threshold, but in 2011 and 2013 the focus is on restoring a reasonable balance of power in attrition contests. AND, if the Senate actually wanted to do something about holds & gratuitous cloture votes (Elizabeth Warren, for example, complains about the large number of votes with 90+ senators for cloture) they should focus on #3 and expedite the cloture process.

Further reading:
http://themonkeycage.org/blog/2009/08/25/well_how_did_we_get_here_the_r/
http://press.uchicago.edu/ucp/books/book/chicago/F/bo8725150.html

Andrew Gelman November 22, 2012 at 10:28 am

Gregory:

Thanks for the detailed response.

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