Why We Can’t Stop Talking About Filibusters

The refusal of Senate Republicans to compromise has backfired on them big time.

WASHINGTON, DC - NOVEMBER 21: Senate Minority Leader Mitch McConnell (R-KY) looks on during a news conference on Capitol Hill, November 21, 2013 in Washington, DC. The Senate voted 52-48 to invoke the so-called 'nuclear option', voting to change Senate rules on the controversial filibuster for most presidential nominations with a simple majority vote. (Photo by Drew Angerer/Getty Images)
National Journal
Norm Ornstein
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Norm Ornstein
May 14, 2014, 8 a.m.

Let’s talk fili­busters (for some strange reas­on, I can’t stop talk­ing about fili­busters). They are back in the news, on sev­er­al fronts. The most re­cent is the nar­row but sig­ni­fic­ant le­gis­la­tion on en­ergy con­ser­va­tion, worked out painstak­ingly by the bi­par­tis­an team of Sens. Rob Port­man and Jeanne Shaheen. The bill died on a fili­buster by Re­pub­lic­ans as a protest against their in­ab­il­ity to of­fer amend­ments, in­clud­ing on the Key­stone XL Pipeline. Fifty-six votes to in­voke clo­ture, in­clud­ing from Port­man and two oth­er Re­pub­lic­ans, were not enough to save a mean­ing­ful and non­con­tro­ver­sial bill. Des­pite the fact that Ma­jor­ity Lead­er Harry Re­id offered a freest­and­ing vote on Key­stone, the vast ma­jor­ity of Re­pub­lic­ans stuck it to Port­man and sup­por­ted the fili­buster.

Next is a vote ahead on a ju­di­cial nom­in­ee, Dav­id Bar­ron, who has served in the Justice De­part­ment’s Of­fice of Leg­al Coun­sel, to the U.S. Court of Ap­peals for the 1st Cir­cuit. Many sen­at­ors on both sides of the aisle want ac­cess to memos Bar­ron wrote jus­ti­fy­ing the use of drones to kill Amer­ic­an cit­izens. Sen. Ted Cruz is­sued a press re­lease de­cry­ing the fact that now, with clo­ture mo­tions on ju­di­cial nom­in­a­tions re­duced to 50 from the pre­vi­ous 60, a par­tis­an ma­jor­ity can ram through a con­firm­a­tion without ap­pro­pri­ate ad­vice and con­sent.

The third, and most sig­ni­fic­ant, is a fact-check column done by The Wash­ing­ton Post’s Glenn Kessler, in which he gave Pres­id­ent Obama four Pinoc­chios for his claim that Re­pub­lic­ans have fili­bustered some 500 pieces of le­gis­la­tion that would have helped the middle class. To be sure, Obama’s num­bers were wrong — the fig­ure in­cluded a large num­ber of ex­ec­ut­ive and ju­di­cial nom­in­a­tions. And Obama’s claim was really about clo­ture mo­tions, which are far from a per­fect rep­res­ent­a­tion of fili­busters. But the four Pinoc­chios were much less about the blur­ring of terms — bills and nom­in­a­tions, the use of clo­ture mo­tions — and much more about Kessler’s defin­i­tion of a fili­buster.

Let me first note that Kessler is nev­er cas­u­al about his fact check­ing. He digs deep and does prodi­gious re­search. He was smart enough in this piece to con­sult Sarah Bind­er, a top-flight schol­ar who knows fili­busters in­side out. But if he has a flaw, it is get­ting so deep in­to the weeds that he de­vel­ops su­per-my­opia. In this case, he defines a fili­buster as a suc­cess­ful ef­fort to block a bill. That is not the defin­i­tion I would use, Sarah Bind­er would use, or any close ob­serv­er of the Sen­ate over the years would use. In the con­tem­por­ary world, a fili­buster is simply any ef­fort to use Sen­ate rules to raise the bar on a bill or nom­in­a­tion from the stand­ard of ma­jor­ity to the su­per­ma­jor­ity, in this case 60 votes in the 100-mem­ber Sen­ate. By Kessler’s stand­ard, there were 50 fili­busters, not 500. In the real world, that stand­ard is ri­dicu­lous.

Here is a primer that re­flects the lar­ger real­ity. Rules mat­ter, but in the Sen­ate, norms and the lar­ger fab­ric of in­ter­ac­tions mat­ter as much or more. The fact is that Rule XXII, which gov­erns de­bate, re­mained the same from 1975 un­til this Con­gress; and for most of the era, it worked fine. Ma­jor­it­ies were at times frus­trated by the minor­ity’s use of fili­busters, but they were re­l­at­ively rare, and most is­sues were worked out be­fore le­gis­la­tion or nom­in­a­tions reached the floor. There was a lar­ger un­der­stand­ing that fili­busters were not to be used routinely.

When fili­busters were used not in a routine fash­ion — with Demo­crats fili­bus­ter­ing a series of ju­di­cial nom­in­a­tions by George W. Bush on the grounds that they were ideo­lo­gic­ally ex­treme in 2005 — we got the first threats to change the rules in the middle of a Con­gress to move the threshold on ju­di­cial nom­in­a­tions to a simple ma­jor­ity, the “nuc­le­ar op­tion.” When the threat by Ma­jor­ity Lead­er Bill Frist be­came real, 14 sen­at­ors, sev­en from each party, joined to­geth­er to head it off, pre­serving both the rules and the norms. Sev­er­al con­tro­ver­sial Ap­peals Court nom­in­a­tions were let through, a few were axed, the rules stayed in place, and the 14 agreed, with the ta­cit ac­cept­ance of both parties’ lead­ers, that fu­ture ju­di­cial nom­in­a­tions would be fili­bustered only un­der “ex­traordin­ary cir­cum­stances,” i.e., not as a reg­u­lar or routine mat­ter.

In 2007, with a new Demo­crat­ic ma­jor­ity in Con­gress for the fi­nal two years of the Bush pres­id­ency, it was Re­pub­lic­an fili­busters that sty­mied Demo­crats try­ing to send le­gis­la­tion to Bush that he would be forced to veto. And with Barack Obama’s pres­id­ency, Re­pub­lic­an fili­busters or threats of fili­buster es­cal­ated in ways the Sen­ate had nev­er seen be­fore. The rule had not changed, but the norms were blown up. Fili­busters were used not simply to block le­gis­la­tion or oc­ca­sion­al nom­in­a­tions, but routinely, even on mat­ters and nom­in­a­tions that were en­tirely un­con­tro­ver­sial and ul­ti­mately passed un­an­im­ously or near-un­an­im­ously. The idea of a fili­buster as the ex­pres­sion of a minor­ity that felt so in­tensely that it would pull out all the stops to try to block something pushed by the ma­jor­ity went by the boards. This was a pure tac­tic of ob­struc­tion, try­ing to use up as much of the Sen­ate’s most pre­cious com­mod­ity — time — as pos­sible to screw up the ma­jor­ity’s agenda.

As Tom Mann and I point out in our book It’s Even Worse Than It Looks, this meant stretch­ing out de­bate as much as pos­sible, reg­u­larly us­ing fili­busters on mo­tions to pro­ceed as well as on the le­gis­la­tion, and in­sist­ing, after clo­ture was achieved, on us­ing the full 30 hours al­lowed for de­bate post-clo­ture — but not us­ing any of it for de­bate, just to soak up more time. To say that these tac­tics were not fili­busters, as Kessler does, is na­ive at best. Any­thing that raises the bar from 50 votes to 60, or that threatens to do so to use up pre­cious time, is a fili­buster. Ad­di­tion­ally, oth­er delay­ing tac­tics, in­clud­ing un­pre­ced­en­ted use of “blue slips” to block lower-level fed­er­al judges, dis­tort­ing a long-stand­ing norm, have been em­ployed for sim­il­ar pur­poses.

To be sure, Re­pub­lic­ans had ample reas­on at times to fili­buster; on many bills, to pree­mpt the GOP or simply to avoid em­bar­rass­ing amend­ments, Re­id has “filled the amend­ment tree,” a tac­tic to deny the minor­ity any amend­ments on the floor. Fili­bus­ter­ing those bills, as a protest, is un­der­stand­able. But nom­in­a­tions do not have amend­ments, and the use of the fili­buster to deny the pres­id­ent his team, or to block judges where there were no real quibbles about qual­i­fic­a­tions or ideo­logy, is a ma­jor breach of Sen­ate norms, and Mitch Mc­Con­nell is re­spons­ible.

Lamar Al­ex­an­der makes a pas­sion­ate case that none of this jus­ti­fied the use of the nuc­le­ar op­tion for real, that it was a man­u­fac­tured crisis over nom­in­a­tions to the D.C. Cir­cuit. But the bot­tom-line real­ity there is that when the call came for a new “Gang of 14” to re­solve the is­sue, there were eas­ily sev­en Demo­crats ready to cut the deal, but only two Re­pub­lic­ans. A deal could have al­lowed sev­er­al Cir­cuit Court nom­in­a­tions through but not all, and a re­turn to the “ex­traordin­ary cir­cum­stances” stand­ard for ex­ec­ut­ive and ju­di­cial nom­in­a­tions, or even an agree­ment to use that stand­ard in re­turn for a guar­an­tee of minor­ity amend­ments on le­gis­la­tion.

The re­fus­al of Sen­ate Re­pub­lic­ans to work out a com­prom­ise to re­store long-stand­ing prac­tices and norms has back­fired on them big time. As Jonath­an Bern­stein has noted, the power of the hold — a no­tice by an in­di­vidu­al sen­at­or that he or she will ob­ject to un­an­im­ous con­sent on a nom­in­a­tion, in ef­fect, a threat of time-con­sum­ing fili­buster — has been dra­mat­ic­ally re­duced. So the lever­age of in­di­vidu­al sen­at­ors to use the hold to ex­tract oth­er con­ces­sions is no longer what it was, to the det­ri­ment, es­pe­cially, of the minor­ity party. When Cruz com­plains about the ma­jor­ity now be­ing able to ram through the con­firm­a­tion of Dav­id Bar­ron without the re­lease of the leg­al memos, he can blame him­self; if he had been a part of a Gang of 14, he would have more lever­age now.

Wheth­er the fail­ure of the Port­man/Shaheen en­ergy-ef­fi­ciency bill is be­cause Re­id blocked amend­ments, or be­cause Re­pub­lic­ans reneged on a deal to let the bill go through un­scathed in re­turn for a sep­ar­ate, stand-alone vote on Key­stone, is less im­port­ant than the oth­er real­ity that if Re­pub­lic­ans had stepped up to avert the nuc­le­ar op­tion, they could have achieved much more abil­ity to of­fer amend­ments on le­gis­la­tion.

Earli­er this week, Mc­Con­nell glee­fully took to the Sen­ate floor to cel­eb­rate Kessler’s “find­ings.” But the real­ity of the Sen­ate is far dif­fer­ent, and Mc­Con­nell is much less a vic­tim and much more a per­pet­rat­or.

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