Three Things You’ve Got Wrong about the Filibuster

AP Photo/Henry Griffin

With the Senate showdown on executive branch appointments—and eventually filibuster rules—moving towards the moment of truth, it’s a good time to revisit some of the myths surrounding one of the hallowed chamber’s most perplexing procedures. Here are three:

1. Filibusters ≠ Cloture Votes

Really: Filibusters are not the same as cloture votes. All those charts and fact sheets you’ve seen showing the explosion of filibusters in 2009? Well, it happened, but the explosion was due to an increase in cloture votes, which are—get it now?—not the same as filibusters.

Cloture—or cutting off debate on a bill, nomination, or motion, which by rule in the Senate requires three-fifths of all Senators—is one way the majority can end a filibuster. But it’s not the only way. Filibusters can end through attrition (that is, the minority tires of doing it); through cutting a deal on some minority demand, such as allowing one nomination to go through while another is withdrawn; or through simple minority surrender, which happens all the time when they don’t have the votes to avoid cloture. Filibusters can also kill a nomination or bill with a failed cloture vote. What’s probably more common, however, when the majority knows it doesn’t have the votes to win, is for the filibuster to kill the nomination without any vote at all.

It’s also true, by the way, that the majority can call for a cloture vote even if there’s no filibuster—the fear of a filibuster, even though one might never have developed, can prompt a cloture vote.

Put it all together, and during Barack Obama’s presidency the number of filibusters is far, far, more than the number of cloture votes. The bottom line is that as long as Mitch McConnell and the Republicans insist on a 60-vote Senate, absolutely everything is being filibustered, even if most Republicans don’t join most of those filibusters. It’s still using Senate rules for obstruction.  Cloture vote or no.

2. Deals on Filibusters Are Not Pointless

Many commentators note that a deal on filibusters—like the one Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell agreed to in January—is pointless because Republicans will ignore any commitments they make; Timothy Noah calls previous deals “entirely meaningless.” Doesn’t seem to be true. Republicans this year have been much more restrained in their efforts to block judges from final confirmation votes than they were in the last Congress. There are currently only three judge nominations on the Senate calendar, meaning that they’ve cleared committee and are ready for floor action. In addition to that, two nominees were killed by filibuster earlier this year. Against that are more than two dozen nominees have been confirmed for the federal bench so far this year.

Compare that to 2011, when there were 17 judges stuck in limbo waiting for floor action—not counting five who had just been cleared. There are also fewer executive branch nominees for the Senate to consider, even though presumably there are more new vacancies in the fifth year of a presidency than there were in Barack Obama’s third year in office. That’s not to say that the problem has gone away (especially on judges, there’s still plenty of obstruction, just at earlier steps during the nomination process). It could be that the shorter backlog is because of Reid’s continuing threats, or because of the slightly larger Democratic majority, and not because of the agreement from the beginning of the session. Overall, however, the problem isn’t nearly as bad as it was—and it’s at least possible that another agreement could yield something both sides could live with. The last deal may not have been enough, but it really did have an effect.

3. No, the End of Filibusters Is Not a Given

The last myth: Democrats aren’t risking anything by going nuclear because Republicans will definitely do it next time they have a chance.

Really?

I encounter this one constantly from liberals, many of whom are absolutely certain Republicans will do away with the filibuster the first day that it slows them down. I don’t believe it.

Sure, it’s possible that Republicans could do it, and I’m sure some of them would push for it, just as some Democrats pushed for majority-imposed reform back in early 2009. But the best evidence we have here is that Republicans did in fact have unified government for four years in the last decade, and threatened—but didn’t—go nuclear only on judicial nominations. Now, granted, that was before Republicans found themselves in the minority and imposed a true 60-vote Senate, with filibusters on every single bill and nomination. So the provocation in 2003-2006 wasn’t as severe as it was after 2009. On the other hand, given that Republicans have at least to some extent backed down in reaction to Harry Reid’s threats, it’s very likely that the same story would play out the next time Republicans have the majority: Democrats would filibuster a lot, but would surrender most of that after a GOP threat to go nuclear.

Individual senators have always had a strong interest in retaining rules that give them, as individuals, maximum leverage in the chamber. That’s balanced against majority party senators who have an interest in passing the party’s priorities, In the end, incentives for them as individual Senators usually win out—and not just because it lets them bring the bacon back to their home states. Anyone who remembers Senator Jesse Helms remembers how a single very conservative Senator can use individual leverage to get what he wants out of the chamber, even when Republicans are in the majority. It’s true that those incentives would still be there even if Democrats did go nuclear on executive branch nominations during this Congress, but overall weakening the norm against major majority-imposed reform would surely make it more likely that Republicans would retaliate when they had the chance.

Republicans are still insisting on 60 votes for everything, but they’ve shown some flexibility in response to previous threats of majority-imposed reform. There are still reasons for Democrats to avoid going nuclear, at least if they want to retain the filibuster when they’re in the minority in the future. All of which is important to know for anyone who wants to think clearly about the choices facing Harry Reid and Mitch McConnell this month.

Comments

For a number of reasons, Democratic Senators are much more likely to defect to the Republican cause than vice versa. You don't have to look very hard at the demands made by the likes of Ben Nelson, Mary Landrieu and Joe Lieberman in order to secure their votes for the PPACA to recognize that a lot of that has to do with putting self-interest far ahead of party interests or what's good for that country. Senators like Lieberman love to pat themselves on the back by "saving the day" by agreeing to vote for whatever it is the Republicans have demanded.

Will Republicans completely kill off the filibuster? As it stands, they have no need to do so. I suspect that they would, in a heartbeat, if a Senate minority were standing in the way of the agenda of President Cruz and Senate Majority Leader Coburn, but there's little chance of that happening - either as the result of elections, or by virtue of the fact that the Democrats don't display the same sort of party discipline as the Republicans.

So really, just like the past and present debate, the future debate is likely to center on nominations. Are you as comfortable saying, "Republicans won't do away with the filibuster for confirmation hearings", as you are saying "Republicans won't do away with the filibuster"? Do you think, in doing so, the Republicans would have any fear of retaliation?

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