Beat Them, Sure -- Just Don't Annoy Them

by Jonathan Bernstein

There are lots of reasons that Senators like the filibuster (and it's cousin, the hold): bottom line is that in many cases, those rules and norms work well for individual Senators.

Unless, of course, they don't.  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. 

It's also true that as much as Senators and other political players act on incentives, they also may act -- or at least be stirred into action -- when they get annoyed.  No, really; there are lots of things that are in our self-interest to do, but we don't really notice them, or we don't bother dealing with them, until something happens that gets us annoyed, or offended, or outraged.  And so I think Ezra Klein is exactly correct about Jim Bunning's pointless filibuster against extending COBRA relief and unemployment benefits:

Senate reform, however, could have no better friend than Bunning. Last year, ending the filibuster was a quixotic blogger obsession. Now it's the subject of a petition by the Senate majority whip. Former Republican majority leader Bill Frist says his colleagues are "overdoing" the filibuster. This is how change begins, and without Bunning making clear exactly what the problem is, it would be impossible.

It's not just Bunning.  Richard Shelby's attempt to shut down every single nomination to make a point about local pork forced people to see how badly that norm (the hold is not a Senate rule) was working.  Republican insistence on forcing cloture votes on measures that then passed with overwhelming majorities demonstrated their lack of good faith (in other words, they did not appear to be using their leverage to bargain or to win, only to delay).  And the shenanigans over the health care bill in December, including forcing the reading of bills on the Senate floor and insisting on keeping the Senate in until Christmas Eve Day for, once again, no apparent reason, certainly annoyed and frustrated the Democrats. 

If the Republicans had filibustered the stimulus, the climate/energy bill, the health care bill, and a handful of other things (card check, a few nominations) that their constituents intensely oppose, then I think filibuster reform would have remained a minor issue -- and the Republicans would be, as far as I can tell, not a whole lot worse off in terms of preventing legislation they actually care about.  In fact, I think they would have been better off in many ways. 

A cynic might conclude that the GOP actually wants the filibuster eliminated.  More likely, they've just overlearned the lessons of 1993-1994, and are operating under the mistaken impression that obstructing the majority is always good politics for the minority.  On top of that, Republicans do seem much more interested in the short-term reactions of conservative talk show hosts than they are in, well, anything else (and the incentives of those hosts is not necessarily to promote the success of the Republican Party).  The result: if Democrats do better than now expected in the 2010 election cycle, there's a good chance that filibuster reform will happen.