On Filibuster

Ace of Spades has been emphasizing:

A Vote For Cloture Is A Vote For Amnesty

Which got me to thinking, should the bar for voting against cloture on a bill be higher than merely voting against the bill? Why not filibuster everything you oppose, assuming you can persuade 39 of your collegues to do the same? Come to think of it, why not just change the constitution to require supermajorities on every Senate action?

Full disclosure: I've been on the other side of this question. Justices Alito and Roberts relied for their confirmation on two or three senators (I forget the exact number) who, knowing full well that the nominees had more than 50 but less than 60 votes in favor of their appointment, nonetheless voted for cloture and against confirmation.

For which I am extremely grateful, and in consideration of which I hold to the general principle that at the end of the day legislation should have an up-or-down, majority-wins vote. But how does the process actually work?

Here is my speculation: senators do what they can get away with. The voting public itself has a higher bar for the filibuster than it does for the legislation, the standard probably being that the legislation has to be really really bad to justify a filibuster. Not exactly a model of clarity, so the senators have to keep their finger in the wind before making that kind of decision. At some threshold of popular opposition, he opposes it; at a higher level, he filibusters. It probably is really that simple . . .

. . . Except when it might be more complicated. Remember that the Alito and Roberts votes were held against the backdrop of the "Gang of 14" agreement, whereby seven Democrats promised to raise the bar for the filibuster (in some unspecified way) in exchange for the promise of seven Republicans not to change Senate rules to prevent filibusters in toto. So when the hearings went well for the nominees, the Democrats probably believed that it was more important to maintian their own credibility, and to preserve the agreement, than prevent the justices' confirmation. Even though their core base was crying loudly for a filibuster. Again, I'm grateful.

So what about the Comprehensive Immigration Sellout? Shoule we filibuster? Well, yes we SHOULD filibuster, on the grounds that the Senate skipped the hearings. As Stanley Kurtz wrote:

I’m still stuck on the way this bill was going to be pushed through without a public airing of crucial provisions, in the two or three days before Memorial Day recess. But I should be stuck even further back–on the way this bill was cooked up in a backroom deal that bypassed the ordinary process of public hearings. We take them for granted, but those civics textbook fundamentals are there for a reason. We’re going to pay a steep price for setting the fundamentals aside.

But having said all that, if the Senate DOES hold hearings, then the final bill WILL deserve an up-or-down vote.