March 6, 2013

The basic story of filibuster reform is very simple. Senators from the majority party are always torn between their preference for individual influence (and, perhaps, their concerns about party goals in the future when they’re in the minority) on the one hand, and their concerns about enacting the party agenda on the other hand. The first of those pushes them to retain the filibuster; the latter, to curtail or eliminate it.

The trick for the minority party is then to use the filibuster as much as possible without tipping that balance of incentives. Not just incentives: Recall what Sydney Greenstreet said to Humphrey Bogart about the “delicate judgment” required, because “in the heat of action men are likely to forget where their best interests lie and let their emotions carry them away.”

All of which gets to today’s cloture vote on President Obama’s D.C. Circuit nominee, Caitlin Halligan, in which Republicans were able to sustain the continuing filibuster. What was interesting is that Senate Democratic Whip Richard Durbin (Ill.) immediately threatened that if record levels of obstruction continue, the Democrats will revisit the Senate rules:

“I hate to suggest this, but if this is an indication of where we’re headed, we need to revisit the rules again,” Durbin said. “We need to go back to it again. I’m sorry to say it, because I was hopeful that a bipartisan approach to dealing with these issues would work.”

“It’s the best thing for this chamber, for the people serving here and the history of this institution,” Durbin said of the bipartisan arrangement. “But if this Caitlin Halligan nomination is an indication of things to come, we’ve got to revisit the rules.”

The question, really, is whether the Halligan nomination is, as Sen. John McCain (R-Ariz.) said today, an “extraordinary circumstance” — or whether it will turn out that any nominee to the D.C. Circuit Court will also be defeated by filibuster. The question is whether Chuck Hagel will be a rare example of a nominee delayed (and in that case not even defeated) by a failed cloture vote, or whether it will turn out to be the first of a series of such delays.

Durbin’s reaction is exactly what should be expected given the balance of incentives, and perhaps some of the emotion involved. What we’ll have to see now is whether Republicans can successfully calibrate that “delicate judgment” to get maximum obstruction with minimal reprisal. One thing they should remember: The frustration factor is a lot higher with 55 senators and a newly reelected president than it was with 50 or 60 senators in 2009-2010 (when the frustration was reduced by successful partisan cloture votes) or when it was 53 Democrats after a severe electoral setback in 2011-2012 (when the frustration was reduced because even a bare majority seemed tenuous).

Durbin’s reaction today suggests that Republicans really are going to have to be careful going forward. That frustration level just might overwhelm the long-term interests of Democratic Senators. And remember, there’s nothing special about Opening Day; a majority of Senators who really want to act can change Senate rules whenever they want to.