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."
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.

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Norm Ornstein is a contributing writer 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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