Tag filibuster

On the Filibuster

The usual argument for the filibuster is that it prevents the majority from simply steamrolling its agenda: if every piece of legislation only needed a simple majority to pass, then in the current Senate, 51 Democrats (including VP Harris) can, if they’re united, do anything they want, and ignore the 50 Republicans. Clearly, that’s not ideal. There should to be a mechanism to prevent that, at least in important cases.

At the same time, Americans elect Senators to actually get stuff done. If Americans elect 59 Senators from party A, and 41 from party B, it’s because they want to advance party A’s agenda, and have it completely thwarted by party B is also not ideal.

But that’s what we have now: Senators don’t need to do a talking filibuster like Jimmy Stewart in Mr. Smith Goes to Washington. All they need to do is send email announcing their intention to filibuster a bill, and that bill effectively requires a 60-vote supermajority to pass. The Constitution reserves supermajority requirements for extreme situation, because the founders realized the need to balance fairness with getting stuff done; there’s a reason they switched from the Articles of Confederation to the federal constitution.

If, as is often claimed, the purpose of the filibuster is to promote compromise, then a better way to reform the Senate rules might be to guarantee the minority party(ies) certain rights, like being able to propose amendments, or introduce some legislation that the majority party doesn’t even want to consider. I’m open to the idea that it might be a good idea to preserve the talking filibuster, for those cases where one or a handful of Senators feel so strongly about an issue that they’re willing to pay a personal cost to block it. But blocking legislation shouldn’t be routine.

“The Filibuster Should Be Painful”

Joe Manchin appeared on Fox News Sunday and said he supports the filibuster, but it should come at a cost:

“The filibuster should be painful, it really should be painful and we’ve made it more comfortable over the years,” he said on “Fox News Sunday.” “Maybe it has to be more painful.”
…
“If you want to make it a little bit more painful, make him stand there and talk,” Manchin said. “I’m willing to look at any way we can, but I’m not willing to take away the involvement of the minority.”

Which echoes something I’ve been thinking for some time.

Yes, the filibuster is a hack. But what it does is give the minority — sometimes a minority of one — the power to block legislation. And yes, some legislation, even legislation with majority support, is bad and needs to be blocked. I’m aware that this paragraph would sound a lot better if it weren’t for the fact that the second most famous filibuster (after James Stewart’s) is Strom Thurmond’s filibuster of the Civil Rights Act. But let’s posit for the sake of argument that some legislation is bad and ought to be stopped.

The talking filibuster does that. But at some point in the 1960s, the Senate started switching to the “procedural filibuster”. In contrast to the stay-up-all-night-talking-without-a-bathroom-break, or “talking” filibuster, the procedural one basically means role-playing one: one Senator announces their intention to filibuster, the others roll for WIS take a vote on whether to make the first Senator shut up, and then either stop debate as if the clock had been run out, or tell the Senator‘s character to put a sock in it and take a vote on the original bill.

The problem with this is that it’s too easy: any contrarian dickbag can derail the Senate with no cost to themselves. That’s like having the emergency brake on a train accessible to toddlers, with no fines or repercussions for misusing it: unless you live in a community of saints, that train would never go anywhere. And so it is with the Senate these days. So returning to the talking filibuster would help ensure that legislation is blocked only when the minority feels very strongly about it; strongly enough to stay up all night talking without a break.

At the same time, as I said, it’s a hack. In particular, the talking filibuster would tend to favor younger, healthier senators. Perhaps a different solution could be worked out, like maybe Senators are given one filibuster coupon at the beginning of each session, and once it’s used up, it’s gone. Or maybe they can get one super-vote that’s worth ten regular votes, but then they forfeit the next ten votes. These are just off the top of my head, and I’m sure they can be abused as well. But I would like to stop letting every dumbass reactionary block legislation, so things can actually move forward.

Arthur Dent’s Procedural Filibuster

Anyone who’s watched Frank Capra’s
Mr. Smith Goes to Washington
knows what a filibuster is: the Senate has no time limit on debate, so
a senator can just talk and talk and talk for hours, thus preventing
the Senate from taking a vote. This can be stopped if 60 senators vote
to halt debate (a cloture vote), allowing Senate business to resume.

Gary Gamber has a
history
of the filibuster. One interesting twist, though, is that — if
that site is correct — since 1975 Senate rules allow for the
procedural filibuster: if 41 or more senators to simply say that they
intend to filibuster, the filibuster is assumed, the motion is
dismissed, and business resumes.

In other words, a senator can say “I intend to filibuster. Then you’ll
have a cloture vote to shut me up, but 40 of my colleagues and I will
vote against cloture, so the motion will fail; I’ll keep talking until
I run out the clock, and the vote on the issue I care about won’t take
place. So let’s just save ourselves some time and simply pretend that
that’s what happened.”

This seems very similar to the scene in
The Hitch-Hiker’s Guide to the Galaxy
where Arthur Dent is lying in front of the bulldozers to prevent them
from demolishing his house.
He[1]
tells the foreman that since he’s going to be doing this all day, and
since the workers are resigned to this anyway, then they don’t
actually need Arthur there, and he can just run down to the
pub.

[1] Or Ford, in the TV series.

Unlike the Senate, Douglas Adams’s fictional bulldozers do demolish
Arthur’s house as soon as he’s not there to stop them.

And this illustrates a weakness of the procedural filibuster.
Filibusters work because people can and do tie up the floor of the
Senate, preventing real business from occurring. Filibusters are also
a good thing, because they prevent the majority from running roughshod
over the minority. If a senator feels strongly enough about an issue,
he can prevent the vote from occurring, even though he is in the
minority, as long as he can convince 40 others to let him go on. At
the same time, the fact that a filibuster is physically demanding
helps reserve it for those cases when negotiation fails.

But ultimately, it depends for its effectiveness on the senator in
question being able and willing to walk the walk: to talk for as long
as it takes, without a bathroom break if necessary, until either he or
the rest of the Senate gives in. (Though I think there are rules for
allowing two or more senators to take turns, to give each other a
break.)

Fortunately, the majority leader has the option of calling the
filibustering senator’s bluff: bypass the procedural part where the
majority and minority anticipate each other’s moves, and actually go
through the motions: talk, cloture motion, count the votes.
Unfortunately, I understand the current majority leader, Harry Reid,
has failed to use this power, leading to an unprecedented number of
procedural filibusters.

Anticipating a series of events and acting as if they had actually
happened only works if all of the players agree that that’s how things
will play out. In reality, a lot of senators are old, and while they
love to hear themselves talk, even they aren’t necessarily up to the
task of speaking for 20 hours straight, or whatever it actually takes
to block a vote. It wouldn’t hurt Reid to remind those who are abusing
the power of the filibuster what a real one actually entails.