Gresham’s Law in the Senate: How Filibuster Reform Begot Rand Paul’s Filibuster

Bad money drives out good. - Gresham’s Law

Gresham’s law was coined (hahaha!) back when it was apparently okay to call things laws based on a hunch.  Nonetheless, it has a solid theoretical foundation.  To understand it, just consider how you would pay for things if gold and lead were both made legal tender at the same price per pound (hint: you wouldn’t be smart to pay gold for anything).

I bring up Gresham’s law because today’s filibuster by Rand Paul—still ongoing as I write of this—highlights a similar phenomenon that has emerged recently in the Senate.  During the first two months of the 113th Congress, there have already been filibusters of presidential nominations (2 cabinet-level (Hagel & Brennan), one judicial (Halligan), and this phenomenon is directly, and presumably ironically, tied to the filibuster reforms agreed to in January.

In a nutshell, these reforms eliminated or limited the ability to filibuster some (arguably redundant) procedural steps, sped up cloture, and created a few explicitly bipartisan maneuvers that can be used to thwart holds on legislation (thus making it easier for the Majority and Minority Leaders to work together so as to actually begin debate on a bill).

The details of these changes are beyond the scope of tonight’s post.  The point/analogy I want to make can be summarized in two steps.

  1. Filibusters are often about a Senator or group of Senators seeking attention, where “attention” can take many forms: the opportunity to offer amendments, policy or patronage concessions from the President, etc. Accordingly, and particularly if the attention is rather parochial or not on the legislative agenda (as in the case of stonewalling by the White House in the face of requests for clarification about when the President can have drones kill people on American soil), it is often either strategically optimal or logically necessary to filibuster something that is unrelated to the content of the attention that the Senator(s) seek.

  2. The rules changes adopted in January explicitly exempt Cabinet-level and judicial nominations.  Without belaboring the point, the clear goal of the filibuster reform package was to increase the individual cost of filibustering, but it did not do so uniformly.  In other words, while the individual costs of filibustering other matters have increased following the reforms, the cost of filibustering Cabinet-level and judicial nominations is still the same..

Combining these two points: the “currency” of a Senator seeking attention is fundamentally that most precious of all commodities: time. Even in the Senate, where a day is often not a day, an hour is an hour is an hour.  However, the filibuster reforms made some, but not all hours of Senate time more expensive than others for a Senator upset about drone strikes and White House stonewalling.  Tonight, Rand Paul is simply using the cheap coin rather than the expensive one: quite fitting for one who is presumably dubious of bimetallism.

And, speaking of “bad coin,” I leave you with this.