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Posted at 12:30 PM ET, 12/27/2010

No, we don't want a Mr. Smith Senate

By Jonathan Bernstein

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.

Jonathan Bernstein writes about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.

By Jonathan Bernstein  | December 27, 2010; 12:30 PM ET
 
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Comments

An interesting take, but one important point of the proposal was missed in this post. The motion to proceed would not be able to be filibustered (is not filibusterable?). That snatches several days off the calendar right there as once a motion is made, several days of debate are required.

BB

Posted by: FairlingtonBlade | December 27, 2010 1:07 PM | Report abuse

Easy answer.. write the bill that says "NO FILIBUSTERS BY REPUBLICAN MEMBERS OF EITHER HOUSE - PERIOD.

End...

Posted by: rbaldwin2 | December 27, 2010 1:21 PM | Report abuse

Mr. Bernstein, were you part of Ezra Klein's Journ-O-List?

Posted by: clawrence12 | December 27, 2010 1:44 PM | Report abuse

"Mr. Bernstein, were you part of Ezra Klein's Journ-O-List?

Posted by: clawrence12 | December 27, 2010 1:44 PM"


If he was, what does that mean? What is the importance of being part of the Journ-O-List? What are the ramifications if he was?

Posted by: wiccan | December 27, 2010 2:04 PM | Report abuse

clawrence12, did you participate on the House Committee on Un-American Activities?

Posted by: bsimon1 | December 27, 2010 2:13 PM | Report abuse

clawrence12, did you participate on the House Committee on Un-American Activities?
----------------------------------------------
I knew something was wrong with claw's question. It should have been:

Are you, or have you ever been, a part of Journo-List?

Posted by: 12BarBluesAgain | December 27, 2010 2:17 PM | Report abuse

clawrence12, did you participate on the House Committee on Un-American Activities?
----------------------------------------------
I knew something was wrong with claw's question. It should have been:

Are you, or have you ever been, a part of Journo-List?
(delivered in quavering falsetto, with twitching eyelids)

Posted by: 12BarBluesAgain | December 27, 2010 2:19 PM | Report abuse

"The difference now is that the minority uses it on everything, not just those things it opposes intensely."

And, accordingly, doesn't forcing the Senator to stand and talk then serve the purpose of publicizing the pettiness of such opposition?

If the minority chooses to exercise the filibuster on non-controversial legislation and/or nominations, they may see a short-term bump in support from their base, but would likely also see stronger opposition from everyone else - potentially nudging neutral observers/voters into the negative category.

Posted by: bsimon1 | December 27, 2010 2:22 PM | Report abuse

"And, accordingly, doesn't forcing the Senator to stand and talk then serve the purpose of publicizing the pettiness of such opposition?"

Well, yes, if there were neutral refs out there who could enforce a pettiness penalty. But that's not going to happen. Fox News would applaud the valiant GOP resistance, Maddow would attack it, and most undecideds don't watch either, and would never hear about the whole thing -- or just interpret it as "there goes Congress, squabbling again." Yeah, there are probably one or two Goo Goos who might turn against Republicans...but against that are the one or two new viewers who would watch GOP talking points on CSPAN2 and get convinced.

Posted by: Jonathan Bernstein | December 27, 2010 3:25 PM | Report abuse

At long last have you any sense of decency, sir?

BB

Posted by: FairlingtonBlade | December 27, 2010 3:30 PM | Report abuse

FairlingtonBlade, it's a relevant question given the issues being pushed by them all.

Posted by: clawrence12 | December 27, 2010 9:46 PM | Report abuse

"Well, yes, if there were neutral refs out there who could enforce a pettiness penalty. But that's not going to happen. Fox News would applaud the valiant GOP resistance, Maddow would attack it, and most undecideds don't watch either, and would never hear about the whole thing -- or just interpret it as 'there goes Congress, squabbling again.'"

I don't think that this is a very good reading of how the majority of the media and public would react. Sure, you'd have Fox doing what Fox already does--big deal, there already is a 24-hour outlet for far-right rhetoric. I personally think that some Fox viewers might even get fed up with the GOP's senseless filibustering of everything under the sun--at some point, they're bound to see something that they haven't been completely brainwashed into thinking is bad being filibustered.

But more importantly, I think that the larger voting public would soon tire of this "free media opportunity" for politicians to elaborate on their ideologies (after 2 days at most), and the majority of the media would turn its attention from the rhetoric to how the filibuster is *tangibly* holding up essential government business. Especially if the Dems were to relentlessly hammer the GOP and point to Senators who are actually taking the floor to hold up basic votes, the narrative would shift to the senselessness of GOP obstructionism.

That is, if it even got that far. My guess is that if a Merkley-like reform passes, GOP strategists will game it all out before anybody is foolish enough to take a Mr. Smith-like stand against the appointment of an assistant undersecretary at the Department of Cryptobiology. Besides, would a rotating group of 5, then 10, then 20 Senators even be willing to hold the floor for something that they don't truly believe will destroy the country? My understanding is that these folks generally don't like spending a whole lot of time on Capitol Hill...

To return to the big idea here: a "real" filibuster will initially bring the policy arguments around a proposed piece of legislation to the attention of the public. If the majority of the public decides that the bill is bad, there will rightfully be pressure on the majority party to give some ground. If the filibuster is unpopular--and I would argue that the vast majority of GOP filibusters would be extremely unpopular--there will rightfully be a great deal of pressure on the filibustering party to stop obstructing, so much that many filibusters that currently comprise the status quo would not even happen.

Posted by: billy_burdett | December 28, 2010 11:59 AM | Report abuse

No, it's an opening to an ad hominem attack. You're a journolister so you must be a lying piece of commie filth. It's a sign of laziness in that you can't be bothered to read the article and respond to its substance.

BB

Posted by: FairlingtonBlade | December 28, 2010 6:36 PM | Report abuse

Are you a mind reader now to know that it was an opening to an ad hominem attack? I do not equate a Journ-O-lister with Commie filth. After getting a simple "yes" or "no" I was fully prepared to discuss the topic at hand. See how wrong you (and Fiona) were?

Posted by: clawrence12 | December 29, 2010 6:52 AM | Report abuse

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