No, we don't want a Mr. Smith Senate
Anyone interested in Senate reform should read Ezra Klein's terrific interview with Sen. Jeff Merkley (D-Ore.) -- if you missed it at the end of last week, go back and read it now. I'll also note Merkley's memo about reform.
I think Merkley's trying to do something that makes sense: shifting the costs of a filibuster from the majority to the minority. I'm really not convinced he's succeeding. The problem is that it's awful hard to calibrate exactly how to do that. Merkley wants to force "live" filibusters, but as Klein points out, the majority already has the ability to do that -- and they don't, because live filibusters impose more costs on the majority (in floor time) than on the minority.
That was easy to see in the marathon speech that Sen. Bernie Sanders (I-Vt.) delivered recently on the tax deal. Sanders wanted to be on the Senate floor -- most politicians love talking. Moreover, in almost all cases, the only people who are going to pay attention to whatever happens on the Senate floor are going to be the highest information constituents, who are also likely to be the most partisan. So live filibustering works out well for most senators; it generally should produce more intense approval from their supporters, which translates into volunteer hours, donations, and other useful resources.
What Merkely would do that would, in fact, make a difference is setting a minimum number needed to mount a filibuster (he suggests five senators). That would be a good idea, if the main problem with filibusters were rogue senators trying to shut down the institution. But it would do nothing against partisan filibusters, and that's where the real problem is right now.
The reason the Senate ended live filibusters was for the benefit of the majority, not the minority. Yes, I'm sure it's true that majority-party senators hear from constituents who want them to force people to read from phone books and the like, but as Sanders demonstrated, that's not what actually will happen. All a live filibuster does, as long as Senate rules allow tag-teaming (and Merkely isn't proposing anything else), is to give the minority a platform for their talking points while the majority loses valuable floor time.
Merkley is correct that what's happened in the Senate is new and different, but he's wrong to say that, as he told Ezra Klein, "The filibuster was designed to make sure every member gets to participate and that the minority has a significant role. It wasn't designed to obstruct the deliberative process." In fact, the filibuster wasn't really "designed" in the first place; it was invented by minority Senators who exploited Senate rules to use delay to derail or defeat majority initiatives (see another excellent post from Klein today). The difference now is that the minority uses it on everything, not just those things it opposes intensely.
The truth is that figuring out exactly how to set the rules so that a they provide a reasonable balance between majority and minority is rather difficult to do. Toss in an extraneous goal -- trying to get the Senate to look like an idealized Hollywood Mr. Smith Senate -- and you're only going to make the job harder. Merkley says he wants to encourage deliberation, but the Senate floor has never been where deliberation happens; that's for committee mark-ups, and for off-floor negotiations. Challenge filibustering senators to come to the floor and talk, and that's all you'll get.
| December 27, 2010; 12:30 PM ET
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