image: fix the filibuster

Two Shameful Milestones

When the Senate returns today, it should not celebrate two milestones that it surpassed last week.

First, Majority Leader Harry Reid filed his 116th cloture petition – topping the total number of cloture petitions filed in the previous Congress and signaling the Senate’s continuing dysfunction. To put this in perspective, it is already double the total number of cloture petitions filed in the entire five decade period between 1917-1968, when southern senators famously used the filibuster to thwart civil rights legislation, anti-lynching measures and voting rights bills.

Second, the Senate held its 100th cloture vote last week. The only other time the Senate voted 100 or more times on cloture was in the 110th Congress (2007-2008).

The Senate is on pace to shatter all previous filibuster records. And we still have nine more months to go before this Congress expires.

cloturechart

Why does this matter? Except on nominations, a simple majority of senators alone cannot force an up or down vote on Senate business. Instead, it takes either unanimous consent (i.e., the agreement of all senators present) or a supermajority of 60 senators voting for cloture. A cloture motion is a rough and imperfect proxy for measuring filibusters. But it is one of the best ways to gauge the Senate’s procedural breakdown. The Senate defines cloture as the “only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster.” Cloture motions may actually undercount filibusters and obstruction because they do not demonstrate the number of threatened filibusters that dissuade Senator Reid from even filing cloture or bringing a bill to the floor.

Once cloture is invoked, Senate rules generally allow the minority to force up to 30 more hours of debate before a final vote. In practice, this can take days to resolve, even when a requisite number of senators favor moving forward. There are a few exceptions that will sunset at the end of this Congress, shortening post-cloture time to eight hours or two hours, depending on the position.

In November 2013, the Senate took a historic vote to lower the threshold for cloture on nominations from 60 to 51. This action followed years of Republican filibusters to block votes on nominees to important courts, independent agencies and executive departments – not because of the nominees’ qualifications, but because senators opposed the laws and agencies the nominees would oversee. Veteran congressional analysts Norm Ornstein and Thomas Mann have dubbed this tactic the “new nullification.”

While the 60-vote threshold still applies to cloture on filibusters on legislation, it no longer applies to nominations (except for those to the Supreme Court). Senators can still force cloture votes on nominations – it’s just that a minority no longer controls whether a nominee will ultimately receive an up-or-down floor vote.

After this move, some senators griped that they would do everything in their power to continue to slow-walk nominees, even if they lacked the votes to block a confirmation vote but otherwise support a nominee on his or her merits.

This obstructionist strategy is one reason the Senate hit the new cloture record last week. In an effort to stall and run out the clock, a minority of senators are forcing cloture votes on noncontroversial nominees even when those same senators unanimously vote “yea” on final confirmation.

In the first three months of 2014, the Senate confirmed eight nominees without a single senator voting “nay” – yet still had to spend precious floor time to satisfy a minority of senators who withheld unanimous consent, thereby forcing cloture votes:

  • Christopher Cooper to be a U.S. District Judge for the District of Columbia:
    • On cloture, 56-43.
    • On confirmation, 100-0.
  • Laurie Michelson to be a U.S. District Judge for the Eastern District of Michigan:
    • On cloture, 56-43.
    • On confirmation, 98-0.
  • Judith Levy to be a U.S. District Judge for the Eastern District of Michigan:
    • On cloture, 56-42.
    • On confirmation, 97-0.
  • Matthew Leitman to be a U.S. District Judge for the Eastern District of Michigan:
    • On cloture, 55-43.
    • On confirmation, 98-0.
  • Carolyn McHugh to be a U.S. Circuit Judge for the Tenth Circuit:
    • On cloture, 62-34.
    • On confirmation, 98-0.
  • Timothy Brooks to be a U.S. District Judge for the Western District of Arkansas:
    • On cloture, 59-41.
    • On confirmation, 100-0.
  • Pamela Reeves to be a U.S. District Judge for the Eastern District of Tennessee:
    • On cloture, 62-37.
    • On confirmation, 99-0.
  • Pedro Delgado Hernandez to be U.S. District Judge for the District of Puerto Rico:
    • On cloture, 57-41.
    • On confirmation, 98-0.

If the above nominees passed without a single senator opposed to confirmation, why were the nominations subjected to cloture votes in the first place?

The only plausible explanation is that a minority was determined to obstruct the Senate’s proceedings and burn valuable time that could otherwise be spent legislating and solving problems.

At the moment, Republicans are causing all of this wasted time and resources. They ought to consult some of their floor speeches deriding government efficiency.

The vote lowering the cloture threshold for nominees was never going to be a panacea for the Senate’s dysfunction. Senators who prefer stalemate are still using every available tool to block the Senate from doing its job – boycotting hearings and withholding blue slips in the Senate Judiciary Committee, for example.

But one tactic is passing below the radar, even though it’s relatively transparent. It’s time to shine a spotlight and hold senators accountable for wasting floor time on pointless cloture votes for noncontroversial matters  that do nothing but advance their policy of gridlock.

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About Stephen Spaulding

Find Stephen Spaulding on Twitter at @SpauldingCC.

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