Today's live filibuster shows again just how easy it is to hold the Senate floor for an extended period. I continue to believe that Jeff Merkley's talking filibuster suggestion is not only misguided (because, in part, it puts more emphasis on that public exhibition thing) but just wouldn't work. Essentially, Paul is willing to do this because he believes in the cause and because it plays well with his constituency. A talking filibuster showdown under Merkley would mean that every single Senator in the minority party would be fighting, the very first time they did this, for their future leverage in the Senate -- and surely that would play extremely well with the constituency they care most about.
It's a fair question. Filibuster reformers -- like me -- have argued ad nauseum that the real problem with the filibuster is that the minority can hold up anything they want, as often as they want. Paul's filibuster showed just how easy that would be even after instituting "talking filibuster" reforms.
But I think Bernstein and Binder miss what was being applauded in Paul's filibuster. When Senate institutionalists wax rhapsodic about the upper chamber, they talk about the filibuster's cherished role in slowing down the majority and permitting passionate minorities to be heard. That is a valuable endeavor! It's just not at all what the filibuster typically does. It permits passive minorities to win arguments without ever having to speak. It creates a 60-vote supermajority requirement for anything and everything.
Paul's filibuster fit that more idealistic definition -- and not just because he was standing up while it happened. He chose a topic that deserves much more debate than it gets. He launched a filibuster with no expectation or intention of influencing the final outcome of the debate -- and, indeed, Brennan was confirmed the next day. Rather, he launched the filibuster to be heard on an issue he really cared about. And it worked. The public listened. Other senators listened. Attorney General Eric Holder answered his question. It was productive all around.
When I say that if more filibusters were like Paul's, the filibuster wouldn't need to be reformed, I don't simply mean that Paul spoke while other filibusterers wage silent, procedural war. I mean that Paul's filibuster was a rare and unusual effort to Senate time to draw attention to a senator's very real concerns on a very serious issue. It wasn't about obstruction of a nomination so much as it was about attention to a set of ideas and concerns that are often brushed aside.
What Bernstein and Binder focus on is a different situation: A world in which talking filibusters simply replace silent filibusters. That's a world in which the filibusters, even if they include standing senators, are about obstruction rather than attention. For that reason, I've always been skeptical that Sen. Jeff Merkley's talking filibuster reforms would "fix" the Senate. They might help, but as Bernstein points out, the minority will quickly realize that if it simply wastes enough time at the outset, soon enough, the majority leader will be the one begging for them to go back to silent, swift filibusters.
But should all reforms be primarily assessed on their vulnerability to abuse? The minority, too, has responsibilities here, and even some incentives that push against abuse, Namely, if they have already pushed the majority so far that the majority has substantially curtailed the filibuster, is abusing the new rules really such a wise idea? After all, they can always be tightened further. This is one reason why I thought the most important part of Merkley's rules reforms was simply to force a majority-rules vote on the Senate rules. Once it's clear that the majority can, and will, manage the institution, the minority has to balance the wages of daily obstruction against the risk that they'll lose the ability to obstruct when it counts.