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
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.

What We're Following See More »
Mueller Agrees to Testify, but Only in Private
2 days ago
Trump Loses in Court Again
4 days ago
Trump Pulls the Plug on Infrastructure
4 days ago
Parties Go to Court Today Over Trump Banking Records
4 days ago
Tillerson Talking to House Foreign Affairs
5 days ago

"Former Secretary of State Rex Tillerson was spotted entering a congressional office building on Tuesday morning for what a committee aide told The Daily Beast was a meeting with the leaders of the House Foreign Affairs committee and relevant staff about his time working in the Trump administration. ... Tillerson’s arrival at the Capitol was handled with extreme secrecy. No media advisories or press releases were sent out announcing his appearance. And he took a little noticed route into the building in order to avoid being seen by members of the media."


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.