Yes, the Filibuster Is Still a Huge Problem

From the defeat of a bipartisan energy bill to an endangered judicial nominee, Republican obstruction in the Senate hasn't stopped since Harry Reid invoked the "nuclear option."
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Larry Downing/Reuters

Let's talk filibusters. For some strange reason, I can't stop. 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 Senators 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 First Circuit. Many senators on both sides of the aisle want access to memos Barron wrote justifying the use of drones to kill American citizens. Senator 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 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, 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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Norm Ornstein is a correspondent for The Atlantic, a contributing editor and columnist for National Journal, and a resident scholar at the American Enterprise Institute for Public Policy Research.  More

Ornstein served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also serves as a senior counselor to the Continuity of Government Commission. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future; The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann; and, most recently the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann.

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