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So You Wanna Reform The Filibuster? Here's How
Strom Thurmond sets the filibuster record: 24 hours, 18 minutes.
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Here's the good news: reforming the filibuster -- technically speaking -- isn't that hard.
The bad news: It's unlikely Democrats have the political will to do it.
Threatened use of the parliamentary delaying procedure -- which requires 60 votes to overcome -- has become increasingly common since Republicans returned to the minority. And there's been quite a bit of talk of reforming it. Sen. Evan Bayh's (D-IN) for it. Sen. Dick Durbin (D-IL) reportedly is too. Cal Cunningham, a candidate for the Democratic nomination for Senate in North Carolina, is making filibuster reform a campaign issue. And a majority of Americans want the filibuster gone.
So what can be done about it?
There are two ways. The first -- often described as the "nuclear option" -- is relatively straightforward.
The Senate's presiding officer -- played by a friendly vice president -- would make a ruling saying the Constitution allows the Senate to change its rules by majority vote. That would allow a simple majority to rewrite the Senate's filibuster rules.
That ruling could be appealed by Republicans -- who could then filibuster their own appeal to delay, or end, debate.
"The goal is to derail the majority's effort to change the rules by majority vote," said Brookings Institution Senior Fellow Sarah Binder.
But, "according to precedent," Binder said, Democrats could simply table that appeal of the presiding officer's ruling, and go directly to an up-or-down vote.
From there, secure 51 votes and you can reform the Senate's filibuster rules anyway you want.
And, according to Binder, that doesn't have to be done at the outset of a new Congress. That's just a matter of tradition. If the Dems really wanted to, they could go through this process anytime they wanted.
The problem is political.
"It's a brute force move that basically blatantly ignores the existing rules," said Norm Ornstein, resident scholar at the American Enterprise Institute. "It would be the equivalent of in a Super Bowl game, a team basically tackles all the referees, ties 'em up and throws them onto the sidelines and declares that a penalty is invalid."
Reforms by ruling have occurred in the Senate in the past -- but mostly for much smaller things, Binder said, like jump-starting debate on a nominee. To use the "nuclear option" on something much bigger -- like filibuster reform -- Binder believes the majority would have to be absolutely "convinced that what they're doing is going to be popular."
Not to mention the fact that Democrats almost certainly won't have a Senate majority forever. So whatever watering down of the filibuster they push now might end up hobbling them when they become the minority again one day.
"As long as senators think like that, they're gonna think twice about giving up their own parliamentary rights," Binder said.
Ornstein notes that the "nuclear option" wouldn't be quite so nuclear if it came at the beginning of a new Congress. In that case, the presiding officer's ruling would be a little different -- essentially, that the Senate isn't a continuing body, and has the right to rewrite its rules when new members join, rather than that the Constitution gives the Senate the right to write its own rules carte blanche.
There's another way, too -- but Democrats almost certainly don't have the votes.
Sens. Tom Harkin (D-IA) and Jeanne Shaheen (D-NH) have cosponsored a proposal that would essentially lower the eventual vote total needed to overcome a filibuster from 60 to 51.
On the first cloture vote, 60 votes would be needed to end debate. If one did not get 60 votes, one could file another cloture motion and 2 days later have another vote. That vote would require 57 votes to end debate. If cloture was not obtained, one could file another cloture motion and wait 2 more days. In that vote, one would need 54 votes to end debate. If one did not get that, one could file one more cloture motion, wait 2 more days, and 51 votes would be needed to move to the merits of the bill.
So what would it take to pass a bill like that?
Getting that bill to the floor wouldn't just require the normal (and apparently unattainable) 60 votes. Because it would rewrite the Senate's rules, it would take a two-thirds vote (probably 67 senators) to break a filibuster and get Harkin's and Shaheen's proposal to the floor.
It would then require another two-thirds vote to break a filibuster and force an up-or-down vote on such a proposal.
That's happened before, Binder notes -- in 1979, when a 100-hour limit was placed on post-cloture filibusters; and again in 1986, when that time limit was reduced to 30 hours. "It's not impossible," she says -- it's just not common.
But with Democrats unable to secure even 60 votes to push ahead on its legislative goals, it seems highly unlikely -- if not outright impossible -- that they'd be able to round up eight Republicans willing to water down the minority's filibuster power.
But the reform-by-ruling nuclear option? That's very doable -- at least technically speaking. Politically? That's another story.
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CityGuy
February 22, 2010 11:44 AM
Sorry Senate, but the votes of 51 Senators should always end debate and force an up or down vote. It's undemocratic that the filibuster rules mandate a super-majority-of any size. Yes I know, the Dems probably won't hold a majority forever, but the voters speak and Congress should always reflect the will of the people.
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Lalo35adm
February 22, 2010 1:58 PM in reply to CityGuy
I would like them to eliminate filibuster for one single reason: to watch them argue for its restoration when they lose their majorities.
This debate has nothing to do with principles, constitutionalism, etc. It's just a short-term tactic to enable Democrats to hang their HCR around our necks.
Other than that, Dems love filibuster. Always loved it.
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Ann Arbor
February 22, 2010 2:24 PM in reply to Lalo35adm
You know you're just making stuff up again, right? Ain't nobody ever loved the filibuster like the current crop of Republicans.
http://en.wikipedia.org/wiki/File:Cloture_Voting,_U.S._Senate,_1947_to_2008.jpg
And this chart doesn't even show what's happened last year and this year, when the GOP has filed for cloture on just about every vote that's come up, big and small, from health care to adjourning for lunch.
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hunter
February 22, 2010 3:58 PM in reply to CityGuy
The part that chaps me about this is the constant assertion that Democrats don't want to do this because they'll be in the minority sometime. The GOP came within an inch of going nuclear last time they had a majority, and those guys weren't half as crazy as the current crop. The minute they have 51 Senators the filibuster is over. We shouldn't fear doing it for them.
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slb
February 22, 2010 4:19 PM in reply to CityGuy
Except that a majority of the Senate doesn't necessarily reflect "the will of the people." Small, rural states (which tend to vote Republican) are overrepresented in the Senate relative to their population. To the extent that the filibuster can counter a bare majority of Senators who represent a small minority of the country from imposing their will on the majority, it's a good thing, but lately it has been used in a way that only enhances the disproportionate power the small states have.
So something has got to give; Harkin's proposal strikes me as a pretty reasonable compromise, though I'm not sure it does much to encourage the majority to try to compromise to try to win votes from the filibustering minority. All they have to do is keep calling for cloture votes.
What is really needed is some reform of the structure of the Senate. The large states need greater representation, for one thing. I'm not calling for completely proportional representation as you have in the House, but right now, less than 20% of the population controls half the seats in the Senate, and I'm sorry, that's just wrong.
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mans_best_friend
February 22, 2010 11:47 AM
There's a simpler way. Hold the damned vote and make them actually cast a vote. This business of killing a bill with just the threat of a filibuster is nuts. Let's see how many want to go on record voting against a jobs bill.
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Cool Blue Reason
February 22, 2010 12:03 PM in reply to mans_best_friend
"Holding the damn vote," at least under the current Senate rules, means having the (super)majority vote for cloture. Which requires 60 votes. That's it. There's no other "vote" to "hold" -- just endless debate.
When people say, "Just make them actually filibuster," the problem is that as a practical matter, it doesn't work under the current rules. The minority would need only one person on the floor to knock down any unanimous consent motions, while the majority would need everyone there in order to keep the process going when that one minority Senator suggests the absence of a quorum.
To the extent that the issue is the current rules, the article above does a good job of summarizing the options for changing those rules -- and why the majority doesn't seem likely to actually go through with any of them.
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Barry Champlain
February 22, 2010 1:48 PM in reply to Cool Blue Reason
Do you really think that if the Republicans are forced to step up and actually filibuster, that the much-vaunted "political will won't be there" to shut these guys down by shutting down the filibuster?
There is this proverbial aura of inevitability being hyped by the pundits, that if the Democrats actually dare to break kneecaps, then oooohhh kids so-o-o-o scary! The Amurcun people will surely be so mad at the Dems' heavy-handedness, that they'll rise up and retaliate at the polls in November. So you crazy fringe Lefties better not be getting any outrageous ideas like that, understand?
Show me ONE STAT that proves this.
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mans_best_friend
February 22, 2010 2:42 PM in reply to Cool Blue Reason
The cloture vote is a vote. When the Republicans had control they routinely forced the Dems to cast cloture votes which they then portrayed as votes on the substance of the bill. I don't recall them being so gentlemanly as to just can legislation with the threat of a filibuster and I don't recall them being too picky about distinctions between procedural votes and votes on the bill (remember Kerry?).
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Cool Blue Reason
February 22, 2010 4:14 PM in reply to mans_best_friend
Fair point. However, I'm not sure I agree that Democratic bills going down repeatedly on 59-41 (and probably much less than 59 if it's going to be routine theater) cloture votes is all that good in terms of political optics. I don't trust these guys to put the GOP's balls in the vice, which you need to do if you want the exercise to accomplish anything other than make the Dems look ineffectual.
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mans_best_friend
February 22, 2010 5:02 PM in reply to Cool Blue Reason
In many cases I suspect even the Democrats inability to deliver a cogent message can save the Republicans from their votes. How do you spin a vote against a jobs bill? Besides, I don't think the R's have the guts. They'll know that a Nay vote is a tailor-made campaign commercial for November.
Anyway, I think it's a bluff. They're really caught in a prisoner's dilemma. Make them cast a vote and I'll bet enough will lose their nerve for the measure to be passed. Next time even more will cave. But you have to call their bluff.
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hoppycalif2
February 22, 2010 11:59 AM
We keep forgetting that the Senate is set up to stop anything from changing. It is the house of Congress where the small slave holding states can stop anything that might interfere with their preferred way of life. Sure, we don't have slave holding states anymore, but the mentality is still intact. The Senate allows the small states with few people living there to prevent the populous states from getting anything changed. The much revered "founders" wanted it that way, and it is still that way.
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slb
February 22, 2010 4:27 PM in reply to hoppycalif2
The situation is greatly skewed from the way is was in 1789. There is a far greater gap between the size of the largest state and the size of the smallest one than there was then. So no, I wouldn't concluded that "the Founders wanted it that way."
Also, the nature of the country has greatly changed since 1789. You didn't have national corporations and franchises, or railroads, airlines, interstate highways, and high-speed communications to knit far-flung regions more closely together. Not to mention that before the Civil War, states were far more autonomous than they are now. No, states have far fewer unique interests now than they did then. The structure of the government has to change to reflect that, and I don't see any reason to think that most of those who were present at the creation, so to speak, would disagree with that.
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ericAZ
February 22, 2010 11:59 AM
The point of having a nuclear arsenal (we are told) is not to obliterate the planet, but to make other countries behave.
The Democrats don't really have to pull the trigger, they just have to convince Republicans they are ready to do it.
If the Democrats do act, it should be on legislation that has overwhelming public support. If the Republicans get tagged far off base, few people will care.
So the threat of the nuclear option would limit the Republicans to filibustering legislation where they felt they had broad public support.
Make sure the Republicans know that every time they filibuster, it may be the time the bluff gets called.
Then, if and when the time is right, pull the trigger.
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howie911
February 22, 2010 12:02 PM
I dunno... over at the playground, we had a simple rule for resolving an impasse when a bunch of us would get together, and try to figure out what to play. "This is a democracy, so majority rules." Just saying.
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GOPinNYC
February 22, 2010 12:09 PM
Let me see if I have this straight. Democrats changed the rule in 1917, 1949, 1959, and 1975 and they want to change it yet again. Maybe the problem isn't the number of votes needed to end a filibuster but the inept ability of Democrats to actually lead.
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Rick
February 22, 2010 12:32 PM in reply to GOPinNYC
You need to concede the fact that today's GOP is using the filibuster at a far greater rate than any political party in history.
(You might also want to consider that Congressional Republicans are running at about a 20% approval rating these days.)
The abuse of the filibuster is sociopathic.
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GOPinNYC
February 22, 2010 5:12 PM in reply to Rick
Like I stated if the leadership was better the need to change the numbers wouldn't be an issue. Disagree with the ideology all you want but the GOP ran that shit and with less votes.
The Democrats leadership is pathetic. You know it. I know it. And the discussion on this topic will only affirm it to the American people.
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Liberal Patriot
February 22, 2010 12:17 PM
I posted this great primer on the how to fix the current super-majority requirement in the "Americans for a Majority-Rules Senate" group on the Facebook.
Of course it can be changed, and it is responsible for much of the gridlock in Congress today. But now the honest discussion must be had: regardless of party affiliation, do you think that is better for our country to have a super-majority requirement for all legislation and nominations, or do you think that would be a bad idea.
I think its a very bad idea, as I did when the Republicans were in power. And I think most Americans would be with me.
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Icon
February 22, 2010 12:25 PM
The filibuster isn't an inherently partisan issue. Whichever party (Dems or GOP) that is in power hates it and whichever party (Dems or GOP) that isn't in power loves it.
The filibuster is an issue not well understood by the population; they believe that if they elect Republicans who promise X they will get X and if they elect Democrats who promise Y they will get Y.
All the filibuster does is give the Democrats a way to prevent the people from getting X (if they wanted X) or give the Republicans a way to prevent the people from getting Y (if they wanted Y).
Consequently, the filibuster is nothing more than a procedural hurdle to prevent the public from getting its way. Such a procedural hurdle was inherently sensible when the Senate consisted of individuals elected by state legislatures. At that time, the goal of the Senate was to prevent "the people" from making changes to the government that weren't in the interest of the state governments.
However, the 17th Amendment changed the means by which Senators were elected. Now, we elect our Senators directly. Thus, the Senate is also supposed to reflect the will of the people.
I am increasingly led to believe that the political harm that is alleged will result from using the nuclear option is illusory. All it does now (post-17th Amendment) is interfere with the public's ability to determine its own destiny.
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GOPinNYC
February 22, 2010 12:25 PM
Actually this rule isn't responsible for the gridlock. The gridlock isn't even gridlock. What you are experiencing is bad leadership. Even when Democrats had the numbers to pass legislation they couldn't. That really tells you all you need to know.
Frankly I think anything that keeps more than the budget from being passed is a good thing. This country is already over-regulated and over-taxed as is.
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Icon
February 22, 2010 12:27 PM in reply to GOPinNYC
If you think the government is over-regulated and over-taxed, you can elect leaders to repeal those regulations and taxes.
Well, at least you could do it, if the people you vote for weren't unable to deliver on their promises because of procedural issues.
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Ann Arbor
February 22, 2010 2:30 PM in reply to GOPinNYC
Why of course! If only Wall Street derivatives hadn't been so gosh darn over-regulated, those investment bankers would have had time for some real risk analysis and wouldn't have plunged the country and globe into a financial crisis!
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Mr.E.
February 22, 2010 3:13 PM in reply to GOPinNYC
False assumption. 60 people caucusing with the Ds does NOT guarantee 60 people will vote the same way. Just because the Rs during the past couple decades have marched in lock-step, in part due to drill sergeants such as Tom DeLay, does not mean Ds act the same way.
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slb
February 22, 2010 4:34 PM in reply to Mr.E.
Someone on NPR pointed out that the GOP is behaving like the minority in a parliamentary system. The problem is that we don't have a parliamentary government. The US governmental structure depends on representatives rising above party and working together to solve national problems. When they stop doing that, we have a serious structural problem.
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GOPinNYC
February 22, 2010 5:24 PM in reply to Mr.E.
So you admit Democrats leadership is in fact inferior. I appreciate the admission.
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hoppycalif2
February 22, 2010 5:48 PM in reply to GOPinNYC
I suggest you just assign this sentence to your F6 key, and just hit it anytime you post. Right now I'm worried that you will wear out some of your keys.
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expat46
February 22, 2010 4:09 PM in reply to GOPinNYC
This country is already over-regulated and over-taxed as is.
Your ignorance is astounding! When Hank Paulson went begging on his knees for congress to approve the TARP bailout and John "I'm always for less regulation" McCain suspended his campaign to fly to Washington, I was sure that this country had finally driven a stake through the heart of the 'less regulation' mantra of the rightwing.
Guess what Opie, $11 trillion hasn't evaporated from the value of the stock market because of TOO MUCH REGULATION.
Your 401K didn't lose half it's value because of TOO MUCH REGULATION.
People aren't declaring bankruptcy due to illness or being denied coverage for pre-existing conditions because of TOO MUCH REGULATION.
That tired old line about too much regulation is done, over with, finished. Get it?
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GOPinNYC
February 22, 2010 5:34 PM in reply to expat46
Actually it can be argued that too much regulation and government involvement in the business of loans did in fact cause the whole mess. Allow me to enlighten you some on how it happen. FDR and his Democrat lackeys passed the National Housing Act of 1934. Which brought about the Fair Housing Act of 1968 in response to the "red lining" that the NHA cause. This in turned spurred the The Community Reinvestment Act of 1977. That in turned brought President Clinton's directive to punish banks even further if they didn't loan more money to people in those previously red lined district.
But hey what do I know about anything I'm just some educated Republican in your mind.
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FreemanW
February 22, 2010 8:55 PM in reply to GOPinNYC
The ignorance is insurmountable.
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GOPinNYC
February 23, 2010 12:12 AM in reply to FreemanW
I don't see anyone disputing the info so I would agree you are ignorant.
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expat46
February 23, 2010 12:30 PM in reply to GOPinNYC
Lenders didn’t approve bad loans in order to comply with CRA guidelines they did it to make money. Thinking they were mitigating risk by securitizing the bad loans when in fact they were making it harder to foresee the problem and impossible to contain the damage. Independent mortgage companies with no CRA requirements are responsible for more than half of all sub-prime mortgages. Even if you buy into the idea that loosening underwriting standards was a progressive idea to help minorities own their own homes and that this idea spread to private mortgage companies not governed by CRA, it doesn’t make the case for less regulation.
Take off your partisan blinders for a second and THINK.
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GOPinNYC
February 23, 2010 1:49 PM in reply to expat46
My partisan blinders aren't on. I give the GOP shit on GOP websites. Hell I get banned from Red State once a month because I tell it how it is. Not everyone believes that government is the solutions to every ill in society. I am one of those people. I have always preached this. I will until I die. Our federal government needs to loosen the grip.
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expat46
February 23, 2010 2:22 PM in reply to GOPinNYC
We have at least two things in common and probably more. I've also been banned from red state and I'm absolutely positive that government cannot solve every problem and shouldn't even try.
I am a capitalist. I believe that capitalism did as much to win the cold war, WWII and arguably the American civil war as did any weapon ever devised. I believe in capitalism because I've seen it work. But I also know that unbridled capitalism is/can be a destructive force that has the capability consume us all. Hell, even Alan Greenspan admitted that markets can't regulate themselves.
I appreciate your willingness to debate these issues in a respectful tone and I apologize for my previous 'astounding ignorance' comment. I don't claim to have any pull with management but I can assure you that you won't be banned from this site for having a contrary opinion.
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Steaming Pile
February 22, 2010 12:25 PM
This probably wouldn't be an issue, in my opinion, if the state legislatures still appointed senators. Then, a filibustering senator wouldn't be answering to a bunch of yahoos, just a (hopefully) better-informed subset of those people who probably wouldn't take too kindly to this sort of nonsense, at least in enough states to matter. They'd be more likely to pay attention to state politics and state lobbies than K Street.
And if the filibuster is done away with - wouldn't that make the Senate pretty much redundant? The only remaining differences would be the term of office and the allocation. I'm as much a small-d democrat as anybody here, but it seems to me the Founders who wrote the Constitution designed the Senate the way they did for good reason, and we screwed it all up about a hundred years ago by changing the way these people are elected, specifically that they didn't want key legislation to just breeze through Congress without careful consideration, yet meaningful work would still get done because the state-level politicians who sent them there would insist upon it.
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slb
February 22, 2010 4:37 PM in reply to Steaming Pile
Better informed? In the state legislature? Oh, my God, I wouldn't count on that!
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GOPinNYC
February 22, 2010 5:37 PM in reply to Steaming Pile
Thank you for that. I agree WE tinker way too much with shit that works perfectly fine. If people actually took a look at health care in this country it wouldn't be the issue it is. We are about to do more than tinker with a system were less than 10 million people aren't covered.
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Rick Jones
February 22, 2010 1:04 PM
How about the nuclear option to get rid of the filibuster; then pass the Harkin Rule with a simple majority. Dems could say "We're not abolishing the filibuster; we're just fixing the Senate rules so government works again."
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JWH
February 22, 2010 1:05 PM
The smart thing to do would be BOTH. That is, abolish the filibuster with 51 votes at the start of the next session, and then immediately introduce a motion to institute a reformed filibuster rule. That way, you'd have Republicans kicking and screaming for 24 hours but then what are they going to do? Refuse to contribute votes to at least put some filibuster tactics back into the process? Fine, if they want to do that, then the Dems will be the one on the side of retaining (a reformed version of) Senate protocol, but will now get simple majority rules. It works from a messaging standpoint and a policy standpoint.
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BobFred2
February 22, 2010 1:34 PM
There is currently a crucial difference between a Democratic filibuster of a Republican majority and a Republican filibuster of a Democratic majority.
Because of the small state bias when Democrats filibuster a Republican majority the Democrats actually are representing a virtual majority of voters. When Republicans filibuster the Democratic majority they are representing less than 35% of the population, IOW a rural white minority maintains veto power over any legislation that an urban diverse majority proposes.
The small state bias isn't going to change but the Democrats rhetoric about the problem should and then perhaps the nuclear option becomes possible politically.
It is not just about an "up or down vote", it is about enforcing the will of the people.
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slb
February 22, 2010 4:41 PM in reply to BobFred2
Are you sure it's even as much as 35%? But yes, this is the same thing I was getting at in a reply to a message upthread. Republicans may currently hold 41% of the seats, but they do not represent even that much of a proportion of the electorate.
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Barry Champlain
February 22, 2010 1:40 PM
Okay. No problem. Because enough is enough.
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Mr.E.
February 22, 2010 3:18 PM in reply to Barry Champlain
Truly (typically) stupid quote. It would be nothing like tackling the refs, and everything like the NFL following its own voting procedures and properly changing the rules on whether video replays can be used, then implementing the rule change. Process is just process. When the process is interfering with necessary substantive change, then you change the process.
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slb
February 22, 2010 4:44 PM in reply to Barry Champlain
Now that you mention it, yeah, if the referees were screwing up the game with ridiculous calls, a team would be justified in taking them out.
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EastWest
February 22, 2010 2:05 PM
Pretty well sums it up.
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sbv
February 22, 2010 6:06 PM
kill the tarantino! if the dino's don't have the political will to do it; tell them we will VOTE someone else in who will!
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MMitchell
February 22, 2010 8:21 PM
This is an institutional matter, not a partisan one. Clearly, the majority party dislikes the filibuster and the minority party enjoys it.
The question for us as a country is whether we want a democracy or a system designed to prevent change. Checks and balances and separation of powers--which inspired Senate rules such as the filibuster--are what truly deserve to be examined. We have become so fearful of tyranny of the majority that we have tyranny of the minority.
The answer is not to simply abandon the filibuster (which is in truth based upon a privilege of the British House of Lords that was done away with in the early 1900s). The answer is to reform the most undemocratic part of our system of government: the US Senate.
The 9 largest states account for 51% of the U.S. population, but only 18% of the voting power in the Senate. The 26 smallest states account for 52% of the voting power in the Senate, but only 18% of the population. Is that democratic?
Article V forbids the alteration of equal representation in the Senate. The answer, then, is a constitutional amendment which gives the House the power to override the rejection of a House bill in the Senate (by a proportionate majority: for instance, if a House bill is rejected in the Senate by a vote of 55-45, it would require a vote of 55% of the House to subsequently override this "veto" by the Senate). This system works well in Germany, which also has an upper house rooted in federalist representation of states.
Of course, such an amendment would be difficult to ratify without a mass movement behind it. So for now, the lesson of the framers of the Constitution fits best.
The framers did not technically have the authority to propose a NEW constitution, but simply to make alterations to the Articles of Confederation. They acted boldly, and were eventually rewarded by their constituents and by history. Today, the American people want the filibuster gone. We are willing to have the opposing party (be we republicans or democrats) adopt legislation we may disagree with when they control the Senate. We just want SOMETHING to get DONE.
So do it, "nuclear" or not! The people don't care about the minutiae, they care about results. And SOMETHING is better than NOTHING, no matter what that something is.
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tommyo
February 22, 2010 11:23 PM
The Senate Democrats have elevated their parlimentary rukes above everything else.
They won't change them, they worship them.
What fucking assholes. What failures as both legislators and leaders.
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cinesimon
February 23, 2010 6:06 AM
Is not another way for the Dems to make the right wing actually follow up on their constant threats?
MAKE them filibuster everything they say they will.
Until they've tried that, they shouldn't be seriously considering anything else in my opinion.
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semoto
February 23, 2010 9:11 AM
Haven't you been paying attention? The Republicans will divide themselves into tag teams where only one or two will be required keep the filibuster going, while everyone else goes home for a good night's sleep.
The Democrats however, in order to maintain a quorum so they can punish the Republicans by MAKING them filibuster, will have to have 50 senators on hand at all times -- all day and all night.
Any time the Republicans who are filibustering want to, they can note the lack of a quorum, even if it's obvious there is a quorum. Once the lack of a quorum is noted, the Democrats must immediately get 50 senators into the room for a roll call in order for business (the filibuster) to continue. This is required by the rules of the Senate. The thing is, the Republicans can note the lack of a quorum over and over and over. There's no rule to stop it. They can do it every few minutes if they like.
Meanwhile, only one or two Republicans need to be present. The rest can be home sleeping like babies because they don't care about maintaining a quorum.
The Democrats however, in order to "punish" the Republicans, would care about maintaining a quorum, so none of them would get to go home to bed. Trying to sleep on the cots in their offices, they would be awakened over and over to come to the Senate floor and prove a quorum, becoming more and more exhausted by the hour.
Way to punish the Republicans.
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