Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Jonathan Bernstein, guest blogging over at Andrew Sullivan's blog, writes:
Shifting from a Senate in which the minority will use supermajority rules only to obstruct rare very important issues (pre-1970), to a Senate in which the minority will use supermajority rules to obstruct every major item on the majority's agenda (beginning in 1993), to a Senate in which the minority insists that almost every single item, controversial or not, needs 60 votes to pass (the new GOP standard in 2009) has changed the game.
Indeed it has. I've been pointing out the hypocrisy on the part of both Democrats and Republicans, but it's also true that when it comes to health care, the Republicans have taken their zeal to shut down Congress to surreal extremes, like objecting over and over again to the absolutely routine request to revise and extend one's remarks for the Congressional Record. This is a real asshole move designed only to be petty and childish.
The solution seems obvious to me and it certainly isn't original to me: Bring back the real filibuster. Forget all this nonsense about cloture votes, if you want to filibuster a bill you should actually have to stand there on the floor and talk until you collapse. That's what made the filibuster so powerful as a symbol in decades past, it took real commitment. You really had to feel strongly about stopping something to go to such lengths. You should still have to.
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Agreed. It's a simple cost/benefit calculation. The benefit of stopping the legislation is very high, the cost of using the filibuster to do so is very low. Increase the cost of filibustering, and you change the calculation.
The question is, why aren't the Democrats following this seemingly obvious logic? As fond as I am of saying they have no balls, I don't think that's a sufficient answer. They must face a cost/benefit calculation, too, so perhaps they see the cost of forcing real filibusters to be greater than the value of doing so. But I'm not sure why that would be.
Posted by: James Hanley | March 2, 2010 12:20 PM
Here's a question from a non-American with little to no understanding of American political history - why did the fillibuster rule change so you no longer needed to talk for hours?
Posted by: Brian D | March 2, 2010 12:29 PM
Here's the other side of the coin.
The current fillibuster rules evolved out of changes that created the ability of the Senate to have more than one piece of legislation on the floor at once. (As opposed to a Roberts Rules body which only may consider one item at a time).
Under the old rules, one item could be on the floor at once, and there was "unlimited debate" but that item stayed on the floor until either debate ended and there was a vote, or a majority voted to table the item. The senate could consider no other business in the meantime. A cloture vote under the old rules was essentially similar to a point of order, you actually told someone to sit down and shut up.
Today many potential items are theoretically "under debate" on the senate floor, they either move out of debate by acclamation (unanimous consent) or by a cloture vote. If a Senator indicates he still wishes to debate a measure, a cloture vote must be scheduled, and the bill under consideration essentially just moves to the back of the line and the senate moves on to other business (until the Cloture vote comes up).
If you go back to the old way, you slow the senate debate process down significantly. Which may be a good thing or a bad thing, but it is a significant change.
Posted by: Ben P | March 2, 2010 12:36 PM
Twenty-odd years ago I was in an elevator with Jesse Helms and asked him about his reputation as a master of the Senate's arcane rules. He smiled and said, "I didn't make the rules, I just use what I've got." His other idea was that Senators in a filibuster or other delaying action should be forced to wear ridiculous hats while speaking. Political opponents would be free to use the footage in their advertising.
Posted by: kehrsam | March 2, 2010 12:37 PM
Technically speaking, Brian D, it hasn't changed. The Republicans haven't actually filibustered anything - rather, they've threatened a filibuster.
What's changed is the nature of the job of Senator itself. Back in the old days, Senators would stay in Washington for months at a time and return home during a couple of recesses to campaign. Today, thanks to increased mobility, a large number of Senators return home to campaign events and fundraisers every weekend. Furthermore, there are committee meetings, talk show appearances, and all kinds of other things that take up a Senator's time beyond the process of actually going to the floor and arguing/voting on bills.
This matters because in order to force the Republicans to actually filibuster, there has to be a quorum (51 people) in the Senate chamber at all times waiting for the Republicans to screw up so they can call a vote (otherwise, the Republicans could sleep up there and just issue a quorum call any time someone wanted to do something). This means 51 Democrats would have to stay in the Senate chamber during the duration of the filibuster. Meanwhile, three or four Republicans could tag-team the speaking duties, leaving the other 37 to return home and campaign, fundraise, or appear on talk shows. That's why the threat of the filibuster is so powerful - carrying it through would place a heavy burden on the party that wants the legislation passed. The most recent majority leaders, Reid included, apparently believe that the money their party would lose by not having any more than nine Senators available at a time, the campaign needs of the Senators up for re-election, and the publicity from Sunday talk show appearances trump the benefits of calling the filibusterers' bluff.
I disagree with that calculus, of course - with 59 senators, you can send the vulnerable ones home to campaign on weekends and keep the rest in town, and juggle fundraiser appearances through the rest of the times. You just have to schedule it right.
Posted by: Jeff | March 2, 2010 12:42 PM
ANother problem with using the "Stand and talk til you drop fillibuster" technique, as I've heard, is that when you have plenty of party support FOR the slowdown, the fillibustering party just stands up the next guy when the one on deck gets tired. It isn't really a hardship unless it's a true single lone voice performing the fillibuster.
Posted by: NancyNew | March 2, 2010 12:44 PM
To a certain extent yes, but most of the "great fillibusters" (ie Byrd's famous fillibuster) in the past were cases where only a small handful of senators were actually willing to stand up and attach their names to stopping this bill, but many of their party colleagues weren't willing to oppose them on the matter.
Posted by: Ben P | March 2, 2010 12:48 PM
Brian D @2--
To make it easier on the Senators. Obviously, when actualy speechifying is required, the filibustering party (i.e. the minority) has to have a Senator on hand 24/7 to filibuster the measure; otherwise, the filibuster ends and a vote can be taken. But the non-filibustering party (i.e. the majority) has to have a Senator on hand 24/7 as well: the Senate still proceeds by unanimous consent, and if the majority doesn't have someone in the Senate chamber during a marathon filibuster, the filibustering Senator who has the floor could simply ask for unanimous consent that the bill at issue be defeated.
Another thing Democrats could try -- and this, I'm not sure why they don't -- is getting rid of tracking. Back in the 1960s, when he hated black people (though query whether he's really gotten over all that), Robert Byrd, a Democrat from West Virginia who's now the most senior member of the Senate, was the Majority Whip (#2 in the Senate). To make it easier for southern Democrats like himself to filibuster civil rights legislation, he introduced the "tracking system." Under tracking, when a bill is filibustered, it's automatically put on the "filibuster track." If the filibuster isn't shut off relatively soon, debate is temporarily suspended, and legislation on the "non-filibuster track" is considered, the non-controversial, day-to-day bills. This allows a filibuster to proceed without completely gumming up the works, making a filibuster much easier to do.
Tracking was introduced as a result of Strom Thurmond's legendary 24-hour filibuster of the Civil Rights Act of 1957. Even though Thurmond (then a Democrat) put on a tour de force of filibustering -- at one point reading his grandmother's biscuit recipe -- the filibuster failed, because Senate Majority Leader Mike Mansfield of Montana (also a Democrat) refused to suspend the debate and introduce new legislation for consideration. Thurmond tried to shut down the Senate, and Mansfield called his bluff. Under the tracking system, Mansfield would have been required to suspend debate and introduce other legislation after a certain period of time.
Posted by: Chuck | March 2, 2010 12:48 PM
also, there is a deal made that you can prohibit amendments from being offered on a bill, which is also a stall tactic, in exchange for agreeing that 60 votes is required.
The weak livered majority does this to prevent having to vote on numerous campaign-issue amendments that the repubs can bring up to get a no vote to put in a fundraising mailing..
Posted by: Kevin (NYC) | March 2, 2010 12:58 PM
Jeff: This means 51 Democrats would have to stay in the Senate chamber during the duration of the filibuster. Meanwhile, three or four Republicans could tag-team the speaking duties, leaving the other 37 to return home and campaign, fundraise, or appear on talk shows.
There appears to be a possible way to deal with that under existing rules, if the 51 Senators have big brass ones.
1) Vote in favor to request-and-require attendance at session in chambers by all members, under Senate Rule VI. The Senate Sergeant-at-Arms may be sent to arrest any member who doesn't show, under what amounts to Inherent Contempt.
2) Vote to reject any Rule XXII motion to postpone, recess, or adjourn until the final vote finishes.
3) Vote to refuse (also per Rule VI) ALL permission to absent from chambers. Including permission to go to the bathroom.
4) If there's extreme obstinacy, add a Rule XXI motion to closed session, to cut off anyone bringing in supplies of food, water, and perhaps undergarments or other clothing.
In parallel to the "nuclear option", this might be termed the "biological option", although "siege warfare" and "taking hostages" might also fit well. Such a Senate Chamber would probably bring "chamberpot" into new vogue.
It also would be the end of any pretense at civility.
Posted by: abb3w | March 2, 2010 2:25 PM
abb3w "It also would be the end of any pretense at civility."
Abb3w, citizen, that last word was removed from the NewSpeak dictionary during the last election, when "(R)" turned to "(D)" and Big Brother somehow became Big Brother, if you know what I mean. It's use now an indicator of ThoughtCrime.
The Clinton-era motto "Civility is Weakness", while apt (and once again in effect) is hereby obsolete, and has been replaced with "NO!".
Posted by: Modusoperandi | March 2, 2010 2:45 PM
Great comments from Jeff and BenP. I think Jeff is on the right track in explaining why Dems don't want to force a real filibuster--the slowing down of everything else. On the other hand, I think Jeff's comment about the legendary Mike Mansfield explains why the Democrats really ought to do so, not for every piece of filibustered legislation, but for the ones they really really really really care about, like, say, oh I dunno, health care?
Their choice not to do so is, to me, more evidence that they aren't all that keen on pushing a health care plan through the Senate, most likely because the vast differences between their plan and the House plan means there'll be no successful reconciliation bill anyway--so why go to so much effort to not accomplish something, when you can not accomplish it with less effort and use your opponents as the scapegoat.
Posted by: James Hanley | March 2, 2010 4:13 PM
abb3w,
Maybe I'd never be a Senator, but I'd just take a crap on the Senate floor. See how long the majority (or the filibuster) lasts.
Posted by: Juice | March 2, 2010 4:50 PM
James H: The question is, why aren't the Democrats following this seemingly obvious logic? As fond as I am of saying they have no balls, I don't think that's a sufficient answer.
I have a slightly different explanation from Ben P.'s (though his is good). I think they see the benefit of stopping future legislation as worth the cost of being stopped today. As painful as being vetoed is, its a lot less painful than the thought of giving up one's own power to veto all later bills.
NancyNew: ANother problem with using the "Stand and talk til you drop fillibuster" technique, as I've heard, is that when you have plenty of party support FOR the slowdown, the fillibustering party just stands up the next guy when the one on deck gets tired
If preventing a bill from passing starts to significantly cut into fund-raising and reelection efforts, I think that "plenty of party support" is likely to disappear. The beauty of reinstating the original filibuster rules in today's Senate is that it will pit re-election self-interest against party loyalty. If a Senator chooses filibuster over fund-raising, you know he or she thinks its important. But right now Senators don't have to make that choice; a filibuster requires no time commitment from them. If it were (to require a time commitment), I think the amount of support any filibuster would have would go down sharply.
Posted by: eric | March 2, 2010 4:51 PM
Another advantage of actually making the minority filibuster could be the value of campaign ads against the minority members up for election. Look at Senator Blather talk on and on and on and on ... instead of doing the people's business. Then again, that's what the tea partiers want.
Posted by: natural cynic | March 2, 2010 5:25 PM
@natural cynic, #15: You have it exactly backwards. The senators themselves would put out the footage of, say, themselves reading the Declaration of Independence on the floor of the Senate, standing up for the rights of their constituents against a power-hungry majority trying to sell them out to the insurance companies. Seeing as the health insurance bill (in its current form) is polling around 35% favorable right now, it'd definitely play into the filibusterer's favor. Mr. Smith Goes to Washington is still powerful Americana; the Democrats are being politically-smart in denying Republicans the opportunity to stage a real no-holds-barred shut-down-the-Senate filibuster.
Posted by: Miko | March 2, 2010 6:13 PM
Ryan Grim @ The Huffington Post claims, The Myth of the Filibuster: Dems Can't Make Republicans Talk All Night.
This article claims to be reporting on the analysis Sen. Reid commissioned regarding the Senate parliamentary rules given the Democrats' increasing temptation to force the GOP to do exactly what Ed advocates. However that analysis claims it's not smart politics for several reasons.
First, Senators can trade-off, you can't force one senator to blather on endlessly. Senators now have large staff so they can control the message while they're filibustering and choose to speak therefore you've essentially sacrificed the bully pulpit to them where they choose the terms on how to present their infomercials.
Most importantly, they wouldn't even need to keep filibusters open, they could open them only when the Senate's acting President moves for a vote by calling for a quorum call to stop a vote:
If I were the Dems I would instead be weighing the political costs of having the President of the Senate, VP Joe Biden, overruling the current Senate parliamentarian if he rejects items for a vote through reconciliation he deems are not budget-related and therefore can't go through reconciliation, especially the public option. VP Biden has that power.
Whether another VP has used it or not is something I do not know, but I'd sure be at least considering it since it keeps control in Dems hands rather than handing that control to the GOP through the filibuster. Personally I wouldn't use reconciliation to vote on items the parliamentarian objected to that Biden overruled unless there is admirable precedent that is supportive of such and I'd bet there is not.
I also think, perhaps naively, the Dems can pass the public option if they promote it as a single bill after they pass the other elements of the House/Obama items through reconciliation (assuming the House passes the Senate Bill and the Senate Dems pass the budgetary items of the health insurance the parliamentarian deems budgetary). I'm with Bill Clinton, the American people will most likely be glad reform passed and the public option is already favored by more than half the country. Given the piss-poor job the Democrats have done marketing a very complex bill, I think they could still sell the public option as a stand-alone bill given current majority support and the simplicity of selling it on its own rather than it and a whole bunch of other technical jargon they were forced to market this past year.
*The WSJ also did an excellent article on the Senate's parliamentarian a couple of days ago; tradition holds that current parliamentarians do not speak to the media which is why the media has discovered Mr. Dove.
Posted by: Michael Heath | March 2, 2010 6:16 PM
Eric @14,
I think you're right. I just think that would be outweighed if they really truly wanted this bill and thought they could get it. Then the benefit would outweigh the cost of giving up their future opportunities for obstructionism. But since they don't seem to have a real chance of getting a decent health care bill done anyway, giving up that future opportunity is a cost without a substantial corresponding benefit.
Posted by: James Hanley | March 2, 2010 6:17 PM
I would add that this is a classic prisoner's dilemma. The best collective gain for each party is to cooperate (give up the easy filibuster), but each party does better by defecting (keeping the easy filibuster for themselves), regardless of what the other side does. The best outcome for party X is to keep the filibuster while party Y surrenders it. But if party Y keeps it, then X would give themselves their worst outcome if they (unilaterally) surrendered it. So we get the predicted outcome--mutual defection. That's why each side complains so bitterly about the other's use of the tactic--they'd like to keep it for their own benefit.
This is, of course, an iterated prisoner's dilemma, and both sides are playing the classic tit-for-tat strategy. That strategy can result in on-going cooperation (if both play tit-for-tat, then X's cooperation leads to Y responding with cooperation, which leads to X responding with cooperation, etc.), but which can also, as in this case, result in on-going defection (X's defection leads to Y responding with defection, which leads to X responding with defection, etc.). It's like the Hatfields and the McCoys.
Posted by: James Hanley | March 2, 2010 6:25 PM
Political Scientist Jonathon Bernstein also blogs-in on stalling tactics with an blog post. He focuses on the practical disadvantages to the Democrats with little cost to the minority party that's stalling: http://plainblogaboutpolitics.blogspot.com/2010/01/live-filibuster-one-more-time.html
Posted by: Michael Heath | March 2, 2010 6:31 PM
I think I heard it here, but why not limit the yearly number of "Aye" votes to continue debate to 3 - 5 per Senator. Make it kind of like a time-out in football. Make it a limited quantity and its value goes up.
Posted by: KeithB | March 2, 2010 6:42 PM
Ed, the cloture vote is technically the end of debate on a topic in the Sentate, so it would always be present as long as there is any kind of filibuster. One thing I have seen in the comments here that is consistently incorrect is that opposition senators could "daisy chain" their filibusters so that it would be indefinite. Not so. Each time the next senator stands up to take the floor, a point of order can be raised to invoke a vote of cloture, since "yeilding the floor" is a procedural matter and is therefore subject to procedural rules. A senator, under the old pre-1970 rules, would be able to speak for as long as he had the stamina - no bathroom breaks, meals, or anything except for water - and as soon as he fell out, it would be up to procedural rules to determine what happens next.
It is true that making the Senate consider one matter at a time would "slow down" the procedural processes a bit, but that doesn't necessarily mean the output of the Senate would be any less. In fact, I would be very surprised if productivity in the Senate hasn't decreased since the new rule.
Posted by: Ryan Egesdahl | March 2, 2010 11:36 PM
Oh, and it's also not true that the Dems couldn't make Republicans actually filibuster. There is a rule in the Senate that allows for a "final call" of a quorum by requesting that all senators either show up or give a reason for not being present for a vote. If a quorum does not show up after the final call, the majority of the members present may then vote 2/3 to dispense with the requirement for a quorum and then move on with business. The downside is that as long as there are enough members present from the opposition to vote down the move without meeting a quorum, it can backfire badly.
It's normal Robert's Rules style parliamentary procedure. I have actually had to use a rule like that before in an organization. It's just not desirable to do because you can't actually pass legislation with this rule - only vote for an end of debate on a subject. It gets the job done, though, by removing the ability to filibuster from an opposition that tries to hijack procedural rules with clear abuse.
Posted by: Ryan Egesdahl | March 3, 2010 12:00 AM
Ack! It changed to "unanimous consent" to adjourn! The way you do this is to compel the opposition members to show up, and if they don't, the presiding officer (his name is Joe) issues a notice that the quorum requirement will be suspended. When the meeting resumes the next day, see if the recalcitrant members don't show up. Of course, the cog in the works here is that "unanimous consent" part, but oh well.
Oh, and a quorum in the Senate is a simple majority. That's not too hard to meet if you're the majority party right now.
Posted by: Ryan Egesdahl | March 3, 2010 12:11 AM
The reason the President, the Senate Democratic leadership, and many Democratic Senators have not pushed more forcefully for reconciliation is that while they need to appear to support
certain disputed aspects of health care reform like the public option in order to satisfy their liberal base, in reality they're being bribed by the insurance lobby to cripple effective reform as as surely as the Republicans have been.
Posted by: fyreflye | March 3, 2010 1:31 AM
It's simple; keep the filibuster, but introduce ninjas. Secrete a number of hidden ninjas about the floor of the Senate. As long as the senator is filibustering, they leave themselves open to ninja attack. We'll soon see how much they care about the issues then...
Posted by: Granny Magda | March 3, 2010 9:05 AM
Screw it - Get rid of the filibuster, period. The Democratic party is filled with pansies who split down the middle and vote for GOP bills anyway - The GOP with a slimmer majority got every last thing it wanted through the Senate when Bush was in power - so really the Democrats won't miss it when they are in the minority. On the other hand, the GOP votes in authoritarian lockstep, so they use it all the time when they are in the minority. This means that really the filibuster is almost entirely a tool for the GOP.
So get rid of it. The Dems won't miss it and they may actually have a chance of getting something done when they have the majority (though I wouldn't hold my breath).
Posted by: Disgusted Beyond Belief | March 3, 2010 9:45 AM
A dissenting opinion:
- Barack Obama, 4/26/05
Posted by: Loren | March 3, 2010 10:19 AM
Just in case anyone wants to know what the real rules of the Senate are, you can find them on their website at: http://rules.senate.gov/public/index.cfm?p=RulesOfSenateHome. It's worth the read, even though it's quite dry.
Posted by: Ryan Egesdahl | March 3, 2010 12:33 PM
Thanks, Loren, for adding to the ever-growing list of things Barack Obama has been wrong about, which also includes his naive belief in bipartisanship. Unless he used his time machine (the same one he used to retroactively post a birth notice in the Honolulu Star-Bulletin) to find out differently, there's no hard evidence that the founders intended a routine supermajority requirement for all Senate business; if anything, there's evidence that supermajorities were explicitly reserved for special cases.
And even if the founders did "intend" this: so what? It's not in the text of the Constitution, so it's as relevant as whether they intended for debate to be conducted while wearing periwigs.
Posted by: mds | March 3, 2010 12:45 PM