More Notes From Bizarroworld

by digby

Orrin Hatch is whining like a five year old that the Democrats always get everything and the Republicans never, ever get anything they want and it’s just not faaaaair:

He is, as always, full of shit. The Republicans had a 60 vote majority on virtually everything during the Bush years, thanks to a bunch of right wing Democrats who could be counted on to back anything that either cut taxes or led to the killing of somebody somewhere. The Democrats in opposition were so hapless they were only filibustering things the Republicans actually wanted them to filibuster most of the time.

This discussion is fascinating and a lot of people, including the NY Times are talking about trying to end the practice. Unfortunately, only the Senate itself can do that and the chances of that happening seem nil to me. (And anyway, I’m for just getting rid of the Senate altogether — it’s an undemocratic throwback to aristocracy and has no place in a modern democracy.)

Still, there’s a lot of worthwhile and interesting stuff being written about it and most of it leads me to agree with the idea that they really need to go back to the “attrition” method of dealing with filibusters rather than use the convenient cloture method. It’s messy, but would probably result in fewer of them.

Greg Koger is an expert on the filibuster and wrote a series of articles a few months ago for The Monkey Cage that are fascinating on this subject. This one, on the history is particularly instructive:

The gist of my explanation is that filibustering became an everyday event because senators began responding to obstruction by attempting cloture rather than attrition, i.e. waiting for filibustering senators to become exhausted. This change in tactics decreased the costs for obstruction, and once it was easy, then more senators were willing to filibuster against a broader range of proposals. This general argument has been made by reporters and Congressional observers over the years (e.g. this column by Norman Orstein and a 2004 NYT article) and in a 1985 “Congress Reconsidered” chapter by Bruce Oppenheimer. However, this thesis has a short half-life, so reporters are constantly re-discovering and re-answering the question; while academics do better, the underlying story is often omitted from our studies, and there is a great deal we do not know about how and why Senate tactics changed.

Just as there is more than one way to filibuster, there is more than one way to defeat a filibuster. I classify them as “closure” (a classic term meaning any rule for bringing about a decisive vote), “reform” (changing the rules, or making an unorthodox use of existing rules), and “attrition.” Attrition means that the coalition seeking to pass a bill remains in the chamber, dragging out the debate until the obstructionists are tired, have run out of opportunities to speak (there’s a limit of two speeches per topic), or leave an opening to start a vote—once a vote starts, it cannot be stopped. Attrition was the typical response to a filibuster before the Senate had a cloture rule and, as Gregory Wawro and Eric Schickler demonstrate, majorities did not NEED a closure process to win before 1917 (although Wawro and Schickler emphasize the role of informal norms as a restraint on pre-1917 obstruction).

The 1939 movie “Mr. Smith Goes to Washington” concludes with a very realistic depiction of 1930s style attrition. Smith gains the recognition of the chair and begins speaking from his desk.

And Smith speaks through the night. His speech doesn’t have to be about the appropriations bill on the floor, so he can read from books, talk about the Constitution, etc. And, periodically, he can note the absence of a quorum and compel the other senators to show up in the Senate and prove there are enough senators around to conduct business.

But after a few hours, Smith is exhausted. And public opinion (“astroturfed” in the movie) has arrived in the form of telegrams, telling Smith to quit.

I’ll let you watch to see how it ends (see also the Mel Gibson version). Note, though, that the senators do NOT file a cloture petition, wait two days, and then vote. That would take too long, and would force them to vote to stop a filibuster. Attrition, even if it means lost sleep or a nap on an army cot, is preferable. Second, a filibuster is a public event: the media perks up at the outbreak of a filibuster (as they had when Huey Long was entertaining them from 1933 to 1935), and the filibuster is Smith’s means of “expanding the game” to allow the public to weigh in on the Senate’s proceedings with editorials and telegrams.

He goes on to explain how this changed, due to some embarrassing failed filibusters, a belief that they “harmed the dignity” of the senate, and hangover from the civil rights filibusters. But mostly it was because the Senators just didn’t want to have to hang around Washington all that much when they had junkets, speechmaking and hunting trips on their agendas. Real filibusters are hell on the fundraising schedule.

So, they turned it into kabuki and in turn that made the public increasingly see the government as do-nothing and hopelessly deadlocked:

The necessary condition for an old-school attrition filibuster was a team of intense warriors ready to defy the rest of the chamber—“a little group of willful men” as Woodrow Wilson put it. These groups were typically identified in press reports by ideology (liberals, conservatives, progressives), region (Southerners, Westerners, etc.), or policy preference (isolationists). Even filibusters conducted on behalf of a party (say, to forestall an investigation into a questionable election) were carried out by a few senators identified by name.

Once cloture became the test of a filibuster, however, the necessary condition for a successful floor filibuster was a coalition big enough to prevent cloture. In the context of a Senate that is polarizing for other reasons (hint: not because of redistricting), this increasingly means uniting one party or the other behind a filibuster. And often the most newsworthy filibusters are those when the minority party met behind closed doors and agreed to filibuster so reporters can use words like “stalemate” and “showdown.”

That sounds right to me.

And when you look at it that way, you can see that it is a tool of obstruction that is always more useful to the party that is organized around the idea of keeping the status quo and protecting the wealthy. And in the House of Lords, regardless of party affiliation, those who care about that can almost always gather 60 votes if they really want to — thus proving, once again, that Orrin Hatch is full of shit.

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