Monday, May 02, 2005

More on filibusters and the Nostalgia Option 

Yesterday morning I published this post, which covered a very creative demonstration at Princeton University in support of the filibuster. I argued that rather than abolishing the filibuster, the Republicans should reform the filibuster rules to require actual sustained debate (which I will call the "Nostalgia Option").
[I]t would be a mistake for the Republicans, in a moment of ephemeral ascendancy, to abolish it even for judicial nominations. Once abolished for one thing, people will want to change the rules for tax increases, entitlement programs, environmental laws and attorney general nominations. However, I think that these Princeton students have the right idea: If you are going to filibuster, then you should have to filibuster. Filibusters should come at some personal and political cost. We should abolish the candy-ass filibusters of modern times, and require that if debate is not closed it must therefore happen.

The prospect of John Kerry, Hillary Clinton or Ted Kennedy bloviating for hours on C-SPAN would deter filibusters except when the stakes are dire, if for no other reason than the risk that long debate would create a huge amount of fodder for negative advertising. If Frist were to enact the "reform" of the filibuster instead of its repeal, he would sieze the high ground. He could take the position that the Republicans are merely rolling back the "worst excesses" of the long period of Democratic majority in the Congress, and that filibusters will still be possible if Senators are willing to lay it all on the line.

I was very gratified when Glenn Reynolds (among others) picked up the argument, not once but twice. In the second link, Professor Reynolds was responding to criticisms from Mickey Kaus and others who argue that the Nostalgia Option won't work. Mickey and Glenn kept it up for much of the day, resulting in Kaus taking a "final" position of highly qualified support in favor of the Nostalgia Option:
A "real filibuster" requirement is a legitimate middle ground of sorts, in that it might open the way for some nominations--mainly those wildly popular with the public, but not with the filibusterers--that the status quo (fake filibusters) would not allow. But it's not in the middle of the middle ground! It's 90% of the way toward the Dems' position. ...

For my part, I continue to believe that it is not in the best interests of Republicans to abolish the filibuster -- they will need it themselves some day, and no Supreme Court nominee is worth giving up that protection over the long term. Having said that, I also believe that the reality of a traditional filibuster -- which nobody has seen or experienced in all its harshness for more than 30 years -- would appear through C-SPAN and the blogosphere to be so asinine that the risk of political backlash against the minority would rise rapidly as the days went by. The risk of backlash might not be obvious at the beginning of the debate, just as it wasn't obvious to Newt Gingrich that the Republicans in Congress would take the heat for shutting down the federal government a decade ago, but it would become obvious after just a few days. And even if the traditional filibuster worked to frustrate the first Republican nominee, would Democrats really want to repeat the ordeal for the next nominee? They might look like heroes the first time, and jackasses donkeys the second time.

None of the big blog discussion today, however, addressed a very interesting point raised in this comment to my original post. Our commenter observed that current rules would effectively require that the Republicans keep 51 Senators in the chamber even while the Democrats rotated speakers in and out.
You know, I always thought a Mr.Smith-style filibuster required stamina on the part of the filibusterer, not the filibusterees. But that hasn't been true since Byrd used a simple majority vote to change the filibuster rules, back in '75. Now, even a "real" filibuster is practically cost-free for the minority (they can tag-team, and only one need be present), but is very costly for the majority (almost everybody must be continually present). That kind of perverse incentive is why we have these 'fake' filibusters in the first place. Taken together (cost-free even if you have to hold the floor, and you usually don't have to hold it anyway) explains why (a) we've had so many "filibusters" in the past 30 years, and (b) why their use has expanded to the executive calender instead of being restricted to the legislative calender.

[T]he problem is a "real filibuster" really requires a rules change too, and how do you enact that rules change, without some nuclear parliamentary trick? Under current rules, it takes "three-fifths of all Senators elected" to break a filibuster, not (as it was during 1917-1949 and 1959-1975) [such-and-so] “of all Senators voting and present."

The commenter goes on to quote a post from Free Republic a few days back:
Currently a quorum is required while a filibuster is being conducted (51 members present). That means the Republicans would have to have at least 51 of their 55 members on the floor in addition to the one filibustering Democrat Senator. The other Democrats could be home asleep in their beds under the current rules since it takes 60 votes (three-fifths of all elected Senators) for cloture. If the Senate was operating under the older-style cloture (with today's three-fifths instead of the older two-thirds) rule of 'three-fifths of Senators voting and present,' then the Democrats would have to have a minimum of 31 Senators present to ensure that the presence of 51 Republican Senators would not allow the 'three-fifths of Senators voting and present' to achieve a successful cloture vote. The reason that the Republicans must have at least 51 members (out of their current 55) present on the floor is that if they only had 50 members present, once the single filibustering Democrat got tired he could simply walk off the floor of the Senate with the other 30 Democrats and there would be no quorum (51 members) present and hence no Senate business may take place.

My commenter concludes:
Without some change to rule XXII, the Mr.-Smith-Goes-To-Washington filibuster is an imaginary figment: the minority pays a very small price in caucus support, because only one member at a time must be present on the floor. But, they can force the other party to pay a very high price -- because almost every member of the majority must remain continually present. After about three days of this, which group of pampered grandees will fold: the well-rested minority, or the exhausted pajama-clad majority?

At least under the old rules, it was an endurance test on both sides, instead of only on the side that nominally has the votes to win the issue on the merits.

All well taken -- some rule change would be necessary, and it would take some form of "nuclear option" to get us there. However, the Nostalgia Option modified per my commenter has several advantages over straight-up abolition of filibusters for judicial nominations. First, it does not look results-oriented. The Nostalgia Option would be a good answer for all filibusters. Second, it preserves the filibuster against the day when Republicans next find themselves in the minority. Third, it makes the minority pay a price for the filibuster, which would narrow the circumstances under which it would be invoked. That price might include looking like a fool on C-SPAN or incurring the wrath of every Senator, interest group or apple pie constituency that wants its pet legislation passed rather than see John Kerry intone about sports he doesn't understand.

And it would make for great political theater, perhaps the best reason to get behind the Nostalgia Option.

UPDATE: Patterico made an appearance in the comments with a link to this post, suggesting the "conventional warfare option." Patterico's idea is that the majority could pass a non-binding resolution that would -- in effect -- prove that the pending filibuster was frustrating the will of the majority. If this happened too many times, the public would start to "get it" and pressure would build on the Democrats.

My own view is that Patterico's suggestion would be very useful for pressuring "holds," which are another procedure under which even a single Senator can bottle up a nomination in committee. I'm not sure, however, that Patterico's "conventional warfare option" has quite the propaganda value for Republicans that he suggests. Why? Because most voters don't care about the appointment of judges. The appointment of judges never shows up in any poll of big public concerns. However, those who do care are passionate about it, and they all understand what is going on already. These voters care only about the results. If they support the nominee, they already oppose filibusters, and if they oppose the nominee, they love the filibuster.

The advantage of the Nostalgia Option is that it has the potential to make the minority look very foolish to all voters. I think that potential far exceeds the political risk to the majority, which is that the Senate gets shut down for a week.

Mickey Kaus, meanwhile, posted a rejoinder to this rejoinder. Among other worthy objections (which are largely opposite speculations about the political consequences of the Nostalgia Option), he offers an email from a reader that makes this point:
[T]he real filibuster option instantly turns a full TV network that everyone with basic cable has into a 24 hour nonstop Democratic ad, with no GOP responses. Tired of talking about judges? How about Social Security day. Followed by minimum wage day. Followed by Delay is a crook day. All with the national press actually paying at least a lot more attention than they normally would to whatever senators are going on about. ...

And remember, Dems can leave a standing offer to yield to the GOP for purposes of passing anything that's popular or necessary enough to get the public's attention and risk turning PR against them.

I think it would be impossible for 45 Senators to maintain message discipline over such big chunks of time. Bloggers and even the MSM would cherry-pick the speeches for slip-ups, which would be the only news coming out of the Senate. Not many people would watch C-SPAN, but they would all watch the gaffs that would run each night on the evening news, even CBS.

UPDATE: The filibuster plague spreads to Kuwait.


By Blogger JAF, at Tue May 03, 12:04:00 AM:

Why don't we have the filibuster in which all senators are there? I would suggest that the rules be changed in which every member has to be there and the number to stop the filibuster is 60 minus the number of senators missing. In other words, for example 55 GOP and 45 Dems are there and 3 Dems take off, that would mean that a vote of 57 would stop the filibuster. If it was 3 GOP that took off, the number would still be 57, but the GOP will have 3 less votes.

I don't know, just an idea. I need another drink.  

By Blogger Patterico, at Tue May 03, 12:39:00 AM:

I sent Glenn an e-mail setting forth the same complaint that your commenter made: filibusters are harder on the party opposing them. I wouldn't mind a rules change that reversed the burdens -- but pick a good candidate like Miguel Estrada (too late) to start with.

The other option, which I have been pushing for months, is the "Conventional Warfare Option" (described here.)

The basic theory is simple: rather than forcing a judge down the Dems' throats, force a non-binding resolution of support for that judge down the Dems' throats. Show in a very public way that you have the votes to confirm, and that the *only* thing stopping confirmation is the obstruction of the Dems. I think the focus of the debate would quickly shift in the GOP's favor.  

By Anonymous Anonymous, at Tue May 03, 12:49:00 AM:

"all Senators voting and present"

Seems simple yet elegant to me, but what do I know.  

By Blogger John Hawkins, at Tue May 03, 01:01:00 AM:

The thing I don't understand is why anyone uses the "Republicans will need the filibuster someday" argument. With the current attitude of the Democrat party, they wouldn't hesitate five seconds to kill off filibusters if the Republicans were filibustering a Democrat majority.  

By Blogger drtaxsacto, at Tue May 03, 01:03:00 AM:

It is simply to clean in the present situation - the Dems get a chance to lie about their motives and the real story without having to look like fools. Nostalgia would be wonderful. All of the democrat leadership would be shown off for who they are - Sheets Byrd, Easy Harry, Billary, and all the rest deserve to be seen and heard - their numbers will go from dismal to desparate. Great idea.  

By Blogger Justin, at Tue May 03, 02:14:00 AM:

Isn't the whole point of going back to the nostalgia filibuster is to shutdown the business of the Senate? Yes, it would be fun to watch Hillary and Kerry yak away for hours on end, but the result is that nothing gets done in the Senate. If that is the case, then it becomes the blame game. Who's fault will it be, the majority Republicans or the minoirty Democrats?
It will all come down to what will the public perception of the showdown be? Back when the government was shutdown (by President Clinton or by Gingrich, whoever you choose to blame), interestingly, only MSM existed to help frame the story. And MSM clearly chose Gingrich to be the fall-guy in that government showdown. Flash-forward to this Senate showdown... Does MSM still control what the people think? Not so fast, says Instapundit.com. I just see the imaginary nostalgia filibuster scenario developping into a showdown between MSM and the blogosphere to frame what the public perceives. And assuming the MSM still cheers for the donkeys, I am sure the elephants will handily benefit from the blogosphere's immediate attacks on that bias.  

By Anonymous Anonymous, at Tue May 03, 03:20:00 AM:

A lot of the filibuster lore comes from a Frank Capra movie: , but it is obvious to anybody that has seen that movie that the concept of filibuster has changed dramatically. Bring back the original thing or get rid of the whole concept, please.  

By Anonymous Anonymous, at Tue May 03, 03:25:00 AM:

Shouldn't the real "nuclear option" be the abolition of the Senate?  

By Blogger TigerHawk, at Tue May 03, 05:50:00 AM:

Patterico - Interesting idea.

Last Anonymous Guy - I trust you are joking. If, however, you are not (perhaps you are a Democrats troubled by small state power), I would observe that that would be an extremely difficult Constitutional Amendment to get through the, er, Senate. :)  

By Blogger gokart-mozart, at Tue May 03, 06:17:00 AM:

re: Abolishing the Senate:

Schumer actually said the other day that, although the 45 Democrats are in the minority, "They represent more Americans than the 55 Republicans".

The Democrats have, since Florida 2000, increasingly used rhetoric suggesting that they believe that they embody the General Will, and that as such, actual arithmetical counting of votes, though sometimes helpful, is not authoritative.

If the red/blue paradigm persists through a few more election cycles (and if Republicans are as effective in red Senate races as Democrats are in blue ones), then there will be a permanent Republican Senate majority of 60+, and you will very likely see a formal Democrat commitment to abolishing the Senate, perhaps on XIV Amendment grounds via the courts.  

By Anonymous Anonymous, at Tue May 03, 08:54:00 AM:

Actually, the 14th Amendment wouldn't get you there. Abolishing the Senate requires more than a simple amendment--it would require the *unanimous* consent of the states, as depriving a state of its equal suffrage in the Senate without its consent is the one remaining explicit exception to the amendment clause (the other, preventing the banning of the slave trade, expired in 1908),  

By Blogger rafinlay, at Tue May 03, 08:55:00 AM:

Ah yes, I look forward to the day when the Supreme Court declares the Constitution to be unconstitutional.  

By Anonymous Anonymous, at Tue May 03, 09:10:00 AM:

I think the Free Republic commenter may have made an arithmetic error when he

" If the Senate was operating under the older-style cloture (with today's three-fifths instead of the older two-thirds) rule of 'three-fifths of Senators voting and present,' then the Democrats would have to have a minimum of 31 Senators present to ensure that the presence of 51 Republican Senators would not allow the 'three-fifths of Senators voting and present' to achieve a successful cloture vote. "

Since 51 is (exactly) 3/5 of 85, so it would require 34 Democrats to maintain the filibuster against 51 Republicans. Similarly, if all 55 Republicans where present and voting for cloture, it would take 37 Democrats to sustain the filibuster.  

By Anonymous Anonymous, at Tue May 03, 09:27:00 AM:

Oops-that should be 35, not 34 in the above post, since exactly 3/5 ends debate.  

By Anonymous Anonymous, at Tue May 03, 10:18:00 AM:

I suggest the "Conventinal warfare" option followed by the "Nostalgia" option.

It will be clear to all that the Dems are just being obstructionist, especially when they speak off-topic to fill their time.  

By Anonymous Anonymous, at Tue May 03, 10:18:00 AM:

I suggest the "Conventinal warfare" option followed by the "Nostalgia" option.

It will be clear to all that the Dems are just being obstructionist, especially when they speak off-topic to fill their time.  

By Anonymous Anonymous, at Tue May 03, 10:47:00 AM:

I say shut it (senate) down or let it run at the speed of cold molasses.
What exactly has congress done that we'll miss, let's see,
1. Passed a budget that cannot find enough money for medicare but seems to have enough to cut taxes for mostly wealthy.
2. Pass energy bill that does absolutely nothing about current energy concerns or recognize conservation, provides tax breaks to oil corps that currently have made more profit than any time in history (sitting on 35 billion in cash)
3. Passed the Bankruptcy bill whose only beneficiaries are banks and credit card companies.

Yup, I am gonna miss those guys. The morning blogs won't be as much fun but I guess we'll all suffer just a little for our causes.

Frist, the chicken-shit doesn't have the votes or the balls to force the issue. I for one think repugs should "do their thing" then the Dems can enforce obscure rules that would make watching paint dry more exciting than anything going on there (Senate).

Somehow, and for a long time, I have had the feeling that, the point of being a senator is so that you can wear $2000 suits, be on TV, get the best seats in any restaurant. What happened to those who viewed their position as a responsible stewardship for the current constituency as well as future.

Filibuster is a red herring or in danger of becoming one - just read the prior posts (nittpicking stuff). Not to be too strident but,rules have been used by both sides to "obstruct". One difference here is repugs threaten (no balls yet) to unilaterally change the rules. If they do watch what happens.

And a good morning to everyone.

By Anonymous Anonymous, at Tue May 03, 11:20:00 AM:


you sound so angry about those senators, you almost sound like an anti-government conservative. However, I'm sure that if the Dems were in the majority we wouldn't be hearing a peep from you. You ask "What happened to those who viewed their position as a responsible stewardship for the current constituency as well as future?" The answer is they became liberal Democrats lived in Washington for 40 years.  

By Anonymous Anonymous, at Tue May 03, 11:32:00 AM:

>>Actually the XIV Amendment won't get you there<<

Well, lets hope not, but since the Constitution has been "interpreted" to allow abortion (which was previously forbidden) and to prevent capital punishment (which is explicitly allowed), anything is possible.

The Democrats are moving away from popular sovereignty and towards the General Will.

Their postmodern reality rests on Democrats win-good and just, Democrats lose-evil and nazi.

The Senate is in their way. Look out.  

By Anonymous Anonymous, at Tue May 03, 11:38:00 AM:

In a Nostalgia option filibuster why can't the Republicans take the offensive? Haven't they read the Art of War?
Have a Republican call a Filibuster and hold the floor till 0-dark-30 when all the other Republican senators have scheduled to arrive and vote on the issue. Make the Dems hold their spots on the floor.
Take control and lead, you're the majority.  

By Anonymous Anonymous, at Tue May 03, 11:44:00 AM:

If we don't go thru with the nuclear option, the next time the Dems have narrow control they will do so because Republicans will feel free to filibuster in light of Dem precedent.

Republicans really have no choice.  

By Anonymous Anonymous, at Tue May 03, 12:05:00 PM:

Another benefit of the going back to the “old school’ filibuster is it performs political jujitsu in the war of labels. With the Republicans acquiescing to the label “nuclear option”, the Democrats have the battle for public opinion half won. Imagine the hay to be made in demanding a return to the days of wooden ships, iron men and real filibusters. It plays exactly into the “democrats are weak” stereotype if they try to say that it is “too exhausting” to return to the traditional way of conducting these things.  

By Anonymous Anonymous, at Tue May 03, 12:19:00 PM:

How about this rules change:

Rather than require that 3/5 of all Senators vote to break a fillibuster, why not require that 2/5 (plus one) of all Senators affirmatively vote to maintain the fillibuster. That would require the Dems to stay in the capitol all day, and only require one Republican to remain and demand a point of order the minute less than 41 pro fillibuster Senators are in chambers. The advantage of this option is that you can deny its even a rule change at all, since the number of Senators required to break a fillibuster remains unchanged.  

By Anonymous Anonymous, at Tue May 03, 12:21:00 PM:

I don't understand TigerHawk's insistence that the Republicans need to "preserve" the filibuster. He presents two reasons, but neither are persuasive to me:

(1) Slippery slope: if the nuclear/constitution/Byrd option is used for judicial filibusters, then the door is open for the majority to restrict filibusters on other issues. But that bell has already been rung -- Byrd himself set the precedent. Further, each new Senate votes (by majority) to accept rules governing that session; thus, on any odd-year January morning, a sufficient majority could eliminate the filibuster entirely.

The question is, would any such move have majority support? Right now, the R's can barely muster support for restrictions for judicial filibusters, for which there are constitutional separation of powers arguments (which, even if you think they are flimsy in THIS case, don't apply AT ALL with respect to the Senate's legislative function). If the R's (or flip it, and consider the D's) have less than 3/5, but more than 1/2, many of those Senators "on the margin" will be, shall we say, not ideologically driven -- or will have Presidential aspirations -- and will be unlikely to support an ideological move to restrict filibusters at all, much less on legislation. OTOH, if the R's (or flip it) have > 3/5, then they'd have no need to risk the political downside of changing filibuster rules.

I just don't think the slippery slope argument works, here. If either side had enough ideologically-driven Senators (i.e. non-squish) to change the rules, then they'd ALSO have enough total Senators (i.e. with the squishes) to make a rules change unnecessary. Plus, the precedent has already been set (by Byrd) but we've not "slid" anywhere in 30 years, and can barely muster support for an extremely limited restriction which has some constitutional arguments behind it.

(2) TigerHawk's other argument is "the R's will be in the minority someday, and they might need it."

Yeah. As if the Dems (many of whom, less than 10 years ago, supported the total elimination of ALL filibusters) would hesistate 5 nanoseconds before using the Byrd option, if the R's filibustered 10 of President Hillary's nominees. Remember, this is the Party that pioneered the parliamentary trick we're talking about -- specifically to change the filibuster rules with only a majority vote. They did it once, and will have NO compunction about doing it again. Why should the R's hesitate?  

By Blogger Tim, at Tue May 03, 12:44:00 PM:

This whole dance between the silent fillibuster and the non-existent just vote is just a way of Senators of BOTH sides of covering their behinds.

It is a convenient way of hiding the problem of Senators actually having to get up on the Senate floor and being held responsible for their actions.

In this fine dance, the Democrats can say look at the nominees and the Republicans can say look at the fillibuster.

Both are beind disingenous. If their is a problem with a particular issue or nominee, the the "world's greatest diliberative body", should do just that. In front of the world and on center stage.

As long as Senate rules eliminate this then they are both doing their jobs for their own sake, not in the public interest.  

By Blogger ScurvyOaks, at Tue May 03, 06:00:00 PM:

I realize the posts and comments here have been primarily about the political aspects of the filibuster, but it's worth looking at the text of the Constitution.

Article II, Section 2, Clause 2 says of the President: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The Framers knew how to write a supermajority requirement when they wanted one, and they wrote in a 2/3 requirement for the Senate's concurrence with treaties. This strongly indicates that the constitutionally intended balance between President and Senate with respect to appointments is that only a majority of Senators need concur. The 60-vote cloture requirement is fine in normal legislative contexts (cf. Art. I, Sec. 5, Cl. 2). But on Presidential appointments, it constitutes the Senate making up an internal rule that has the effect of tampering with the balance of power between the executive and the legislative branch that the text of the Constitution plainly contemplates.

I know the shoe has been on the other foot politically before (e.g., Abe Fortas) and will be again. I don't care, and I don't think anybody should care -- because the Constitution itself provides a clear answer on this one.

(I know I'm not the first person to make this argument. A liberal Georgetown law prof published it in the late '90s. I can claim, however, to have thought of it before I read it elsewhere.)  

By Blogger AST, at Tue May 03, 08:44:00 PM:

I think that NOT filibustering judicial nominees is the REAL Senate tradition. As Bob Dole points out both Bork and Thomas got votes on the floor. One was voted down and the other approved by 52 votes. The filibuster wasn't even threatened. That wast the general understanding and practice until the Democrats lost power and sold their souls to the likes of Move-on.org, NARAL, and NOW.

It's the Democrats who have exercised the "Nuclear" Option by resorting to filibustering nominees and blocking the Senate from fulfilling its obligation to advise and consent (or not consent) under the Constitution. The Republicans are already on the high ground. Where they're weak is in seeing this issue as one that could destroy "comity," and trying to hang on to the power to block nominees themselves. The comity boat sailed when the Democrats started demanding promises not to overrule Roe v. Wade and asking "litmus test" questions of nominees.

Ultimately the whole thing needs to be laid at the feet of the Supreme Court, which failed to exercise restraint about going into matters of policy that were too politically charged for it to address. The justices blundered into their own nuclear option when they declared state laws on abortion unconstitutional, and based that holding on a "penumbra" of the Fourth and Fifth Amendments.

If the Republicans back down, these vicious fights over nominations will get more prolonged, dirty and divisive. I think that something needs to be done, and the easiest would be to find judges who understand why judicial restraint and deference to the democratic branches is so necessary. But if that fails, we may have to devise an Amendment that either makes it easier to remove justices or overrule rulings that cause so much political division.

There are cases, such as civil rights, where the courts must intervene to give groups the justice they can't achieve through the political process, but they should be very rare and only when there is a clear national consensus as there was over the Jim Crow laws when MLK demonstrated to the country how brutal and unfair they were. No such demonstration can really be made by advocates of gay marriage. There were no firehoses and dogs used on women seeking abortions. The "back alley abortion" spectre was not really the result of government force in any way comparable to the way blacks were attacked when they marched, or sat in, or moved to the front of the bus.

If SCOTUS rules that gay marriage must be allowed under the Constitution, it may get its wings severely clipped, and that would be unfortunate.  

By Anonymous Anonymous, at Tue May 03, 11:02:00 PM:

Hi. Senator Frist recently put out a report explaining why the "Nostalgia Option" wouldn't work. However, the Congressional Research Service has some ideas for sprucing up the "Nostalgia Option" (by enforcing the "two-speech rule" and eliminating dilatory quorum calls). For more info about all that, see http://www.confirmthem.com/?p=398  

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