The Talking Filibuster: Greg Sargent vs. Jonathon Bernstein

      The reaction by most of the media seemed to be very positive for Rand Paul's 13 hour filibuster marathon. The positive media reaction extends to many liberals like Josh Marshall, Brian Beutler and Greg Sargent who see it as both good for democracy and a way forward for filibuster reform.

     Sargent argues that the talking filibuster is good for democracy.

      http://www.washingtonpost.com/blogs/plum-line/wp/2013/03/07/talking-filibusters-are-good-for-democracy

      Josh Marshall says 'three cheers for the talking filibuster'

      http://editors.talkingpointsmemo.com/archives/2013/03/three_cheers_for_the_talking_filibuster.php?ref=fpblg

      He got some criticism that he's praising the virtues of the filibuster while seeking reforms to gut it. He points out that this is not what he's trying to do-that indeed, the talking filibuster is one of the biggest reforms in the mind of the filibuster reformers like Senator Jeff Merkeley.

     Greg Sargent in praising it draws the contrast between Paul's 13 hour speech and the business as usual procedural filibuster the Republicans used against Obama's federal court nominee Caitlin Halligan

     "Rand Paul finally ended his 13-hour filibuster of John Brennan, Obama’s nominee to head the CIA, at 12:40 a.m. this morning. Whatever you think of the specifics of Paul’s speech, his filibuster was a good thing — it  sparked public discussion about Obama’s drone policies and the weak legal rationale for targeted killing the administration has publicly released."

But Paul’s filibuster did more than that. It also perfectly showcased — in an unexpected way — the problems that have rendered the Senate so dysfunctional.

     "Even as Paul’s filibuster consumed all of our attention because of its uniqueness — no one mounts “talking filibusters” anymore — another filibuster that took place yesterday was treated by the political world as routine, as business as usual, as an entirely normal episode in the day-to-day running of the government. I’m talking about the GOP filibuster of Caitlin Halligan, Obama’s nominee to the U.S. Court of Appeals for the District of Columbia Circuit."

     http://www.washingtonpost.com/blogs/plum-line/wp/2013/03/07/the-morning-plum-what-rand-pauls-filibuster-accomplished/

    There are two distinct virtues that these liberal commentators seem to see in the talking filibuster.  

    1. It's good for democracy. The idea is that it requires Senators to offer their objections to the public in the light of day and offer an honest accounting for their reasons rather than being able to hide behind a costless procedural filibuster. Brian Beutler sums up this feeling:

      "John McCain is worried that Rand Paul’s 13-hour filibuster will embolden reformers who want to change the Senate rules.

     "As one of the guardians of the mess that is today’s Senate he’s right to be worried, but not for the reasons he thinks."

     "McCain believes — or appears to believe — that Paul reignited the filibuster reform movement because his scene on the Senate floor somehow embodies everything reformers hate about the Senate. This is precisely backwards."

      "In reality, Paul’s performance proved the minority can move the needle on big issues not by hiding behind quiet super-majority requirements, but by mobilizing public opinion from the well of the Senate. Filibuster reformers aren’t invigorated today because they have another data point for Senate dysfunction. They’re invigorated because they liked what they saw.

       http://diaryofarepublicanhater.blogspot.com/2013/03/did-rand-paul-reignite-filibuster-reform.html

   2. Beutler's argument touches on number 2: that the talking filibuster is self-correcting as the minority will not be able to execute so many filibusters if they actually have to be physically present and go through these marathons of endurance every time they want to block the majority. 

   As to the question that it's more democratic, I agree that in some ways it was a satisfying resolution on the question of the drones with Eric Holder clearly stating that the government can't strike someone who isn't engaged in combat on American soil. Yes, Paul asked a good question about striking an Arab American eating in a diner in Dearborn, Michigan and Holder has clearly answered this. 

   Still, perhaps I don't think we should over-idealize the talking filibuster-it was a favorite device for those opposed to civil rights in the 50s. Bernstein for his part has been consistently very skeptical of it's effectiveness. Remember, the whole point is that the Democrats want to actually get something done-they want to curb the rise of the supermajority Senate. Does the talking filibuster really help us do that? He doesn't see it. I quote him at length as I think he makes a compelling case:

    "Suppose, for example, that the Merkley plan went into effect this week. And suppose Democrats nonetheless brought up the Halligan nomination. The cloture vote happens, and fails, since every Republican but one opposes cloture. Under the new rules, that triggers a talking filibuster.

    "What happens next? Republicans must decide whether they want to do it or not. What does yesterday's events tell us? It's a terrific opportunity...for the Republicans! The press absolutely loves talking filibusters! Sure, they might not if it became a regular thing (as Kevin Drum points out in an excellent post), but for now it is. Republicans would be prepared for this; they would organize it carefully, tag-team style, as both current Senate rules and Merkley allow for."

    "As for content...I'm far too modest to give myself a catch of the day, but I've been saying for years that a modern talking filibuster would be fueled by the endless resources of the Internet. Which Rand Paul proved to be true by reading, not the phone book, but blog posts and articles. Republicans filibustering against Halligan would have plenty of stuff to choose from in the conservative blogosphere, and you can be certain that with the incentive available that their material could be read on the Senate floor, both professional and amateur bloggers would be happy to crank out more and more about what's wrong with Halligan, and why filibusters are good things, and how important the DC Circuit is and how much Halligan could destroy America if she was on that panel, and on and on and on."

    "The incentives for doing it are considerable; if they don't back up their cloture votes with the newfangled talking filibuster, then the 60 vote Senate is dead and they lose a ton of influence. And after all this specific nomination is, in fact, substantively important."

    "So if Merkley is in effect, the Halligan nomination is still on the floor and the Senate never even gets to the Brennan nomination yesterday."

    "Or, most likely, today. Or tomorrow."

     "Gaming these things out is sometimes tricky, but it's pretty easy to see what happens next in some ways. Liberal newspaper editorial boards -- the ones that already had editorialized for Halligan anyway -- deplore the continuing filibuster. But the conservative media absolutely love it. They pick out conservative heroes of the filibuster -- indeed, the sudden possibility of become the darling of Fox News and the rest of it makes scheduling the filibuster relatively easy for Senate Republican leadership (if Harry Reid keeps the Senate in all night, it's easy to imagine volunteers eager to do a four or five hour graveyard shift, knowing that they'll certainly get plenty of conservative media coverage and with a good chance they'll even get positive coverage in the neutral press)."

     "Now, I realize there are differences of opinion about how long this can go on. But if the Republicans can keep it up through the weekend...well, they still haven't done Brennan. They haven't done a CR, either, and by Monday the calendar is getting tight to pass something and reconcile it with the House and then pass that, too -- especially since if they do try to pass a Democratic version it is subject to a filibuster, and that filibuster could go on for days. They're not getting anything else done, either: no other nominations, no legislation, nothing. They still have (presumably) two days of the Brennan nomination to get through."

      "To be sure: at some point, whether it's Day 3 or Day 6 or Day 10, it may become more difficult for the GOP leadership to schedule Senators. The celebrity for doing the graveyard shift, if Reid does keep them in overnight, is going to be a lot more appealing to the first Senator to do it than the fifth."

      "But the rewards are terrific, as well. An extended talking filibuster on one judicial nomination is really a filibuster of every single judicial nomination; after all, all that time spent talking about Halligan is time that the Democrats aren't bringing up any other judges. Nor are they bringing up executive branch nominations. Or immigration, or gun legislation, or minimum wage."

      "There are 45 Republican Senators, 44 of whom appear to have opposed cloture on Halligan. Even if Harry Reid keeps the Senate going 24 hours a day, that's basically half an hour a day per Senator, or a bit under four hours a week. Is that really all that much of a burden? Granted, if the positive need for 41 is part of the reform they would have to stay in town to make sure they have 41 every time a new cloture vote is called, so they lose weekends home in the district even if they're not scheduled to speak. But again: the incentives to hang in there are just very, very, strong."

      "And meanwhile, the White House is increasingly upset if Brennan and other cabinet picks aren't being confirmed. The deadline on the CR is approaching. Bills are ready to come to the floor. The majority actually wants to get things done! But instead, they're forcing Republicans to continue talking if they want to block one nomination...but as a bonus, they also get to block absolutely everything else on the Democrats' agenda."

       http://plainblogaboutpolitics.blogspot.com/2013/03/rand-paul-and-merkely-plan.html

     In the end then his argument with those Dems who think it's a great idea seems to come down to whether or not you think the GOP would really in the long term be able to sustain the level of filibusters they have over the last 2 years. 

     It is true as Bernstein argues that in a way the talking filibuster is actually a lot more obstructionist in its impact as no other Senate business can be dealt with while it's going on. Yet, on the other hand, I think it's at least debatable whether in the long term the GOP would be able to sustain their current pace if they had to go through this every time. 

     The one thing Bernstein is certainly right about is that filibuster reform should have included reform of judicial nominations. It would have been an excellent idea to take away the filibuster for certain kinds of nominations.