Thursday, January 24, 2013

On The Filibuster Reform That Isn't, Really.

I'll have some thoughts on the specific deal that Harry Reid announced today, but for now I'm just going to republish something I emailed to TPM when they asked for readers' thoughts on filibuster reform. Long-time readers are familiar with the arguments I make (see especially here, and also here, here, and here), but I think repeating them at this moment, and placing them in the context of a bipartisan deal when people might have expected reforms that produced a more partisan Senate is useful.

In general my reaction here is to "wait and see". Effectively ending the filibuster on nominations is useful. But the agreement on the motion to proceed is almost entirely pointless. The only real question now is whether the Republican minority will continue to use all tools available to stall action at all times, or if political defeats have tempered their enthusiasm for being the party of obstruction.

I have plenty of empathy for the Democratic CoS who wants to go big on filibuster reform, but I also have some sympathy for Harry Reid's predicament.

The bottom line is that the Senate is not and has basically never been a rules-driven body. It's a norms-driven body. If every Senator, or the minority leadership, attempted to use the rules to their maximum advantage at all times, nothing would ever, ever, ever get done. Between filibustering, objections to unanimous consent requests, forcing bills to be read allowed on the Senate floor, and so forth, any given Senator or group of Senators can act as an incredibly effective spanner in the works. So the only real rule of the Senate is something like "don't be a jerk too often", and social norms among Senators prevent anyone from getting too far out of line.

Over the past four years we've seen this break down, primarily as the Republican leadership has become more and more interested in stalling action on almost everything.

Jeff Merkley recognizes that the problem here is that norms have broken down, but rules haven't changed to catch up. You can see it in his quotes in TPM piece on the filibuster. His reaction is to change the rules to weaken the minority's power to stall action. But it wouldn't eliminate their power entirely. Even if Merkley got everything on his wish list, Mitch McConnell would still have plenty of ways to gum up the works. It would still be a norms-driven body. The rules would do a better job of reacting to current norms, but ultimately getting something done would still require some level of acquiescence on the part of the minority. Unless Senators are really prepared to turn the Senate into the House and shut out the minority entirely -- and I'm almost certain there aren't 50 votes for that -- they're constrained at some level by the minority's tolerance for being partially shut out. So even though he's not in the room, Mitch McConnell is effectively part of the negotiations  If Democrats go to far, he can threaten to just detonate everything. There's clearly some risk for McConnell in such a course of action, but it's definitely a credible threat. (Note that Harry Reid made similar threats when Republicans were considering the original nuclear option in 2005.)

So if McConnell has quasi-veto power over filibuster reforms, what can be done? Well, a lot depends on whether you think the Merkley/Udall reforms would actually produce a 50-vote Senate. I think they would, but there are smart people who study this stuff for a living, like Jonathan Bernstein, think it would still be a 60-vote Senate. Bernstein thinks that the talking filibuster rule would make it harder for a rogue Senator to run a 1-person or even 3-5 person filibuster, but that a determined minority leader could still credibly threaten to tie things up and outlast the majority. I think all you'd have to do is force a talking filibuster once, wait it out, and then everyone would realize that the only reason for a talking filibuster is to let your members engage in a "primal scream" for their primary voters. But people disagree.

If you buy Bernstein's argument that Merkley/Udall would still mean that it takes 60 votes to get big things done (though perhaps it gets easier to get small stuff done 50), then there's not _that_ much difference between Levin/McCain and Merkley/Udall, other than the giant giveaway to offer the minority two non-germane amendments to every bill. At that point, the main goal of the reformers should be to minimize the amount of floor time the minority can eat up by forcing 60-vote tests, take what you can get, and move on.

Like I said, I'm not sure I buy Bernstein's argument, and I think at some level I feel like filibuster reform ought to be used as a way to punish Senate Republicans for their irresponsible, unprecedented behavior. But hey, McConnell has managed to lead Senate Republicans from 49 seats in 2007 to 45 seats in 2013; Obama won reelection; and the ACA & Dodd-Frank will both remain law and be implemented by a Democratic White House. Perhaps they're already getting what they deserve.
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