On the Use of the Filibuster in Recent History

- - posted in politics

Something really really really important happened in the United States Senate today that would be really easy to miss if you weren’t kind of wonkish like me and pay way too much attention to these things: Harry Reid pulled the proverbial trigger and used ordinary Senate rules to change how filibustering of some presidential nominations is done. Much more detail follows below the fold for those space cadets who’re interested in stepping through the looking glass with me.

A little review, for those who might not have paid enough attention in civics class:

A filibuster is a type of parliamentary procedure where debate is extended, allowing one or more members to delay or entirely prevent a vote on a given proposal. It is sometimes referred to as talking out a bill, and characterized as a form of obstruction in a legislature or other decision-making body.

(Source: Wikipedia

In the United States Senate in particular, rules allow for a silent filibuster. You basically just have to say that you would totally filibuster a given bill if it were to come up for debate, and then magically you, just one senator, have completely halted debate on a given bill until someone moves to invoke cloture. 60 votes are required for cloture, which if passed will bring the bill to a vote that requires a 51-vote majority to pass. It’s a little complicated because it involves parliamentary procedure, which is always by its nature pretty arcane, but really filibusters in the United States aren’t too hard to grok.

So, that 19-hour speech Ted Cruz gave to a (mostly empty) Senate a few weeks ago? Not really a filibuster. No bill was under consideration and he literally just found 19 hours of space in the Senate calendar and decided a good use of that time would be for him to blather uncontrollably for an entire day, forcing some poor secretary to transcribe the whole thing down in the proceedings of the Senate.

Ok. Now that we’re all caught up on what filibusters are and all that, let’s talk about the thing that happened in the Senate, but first let’s talk about what’s been going on the last five years or so.

When I was a kid in the 1990s, filibusters were really rare things still. Here’s a chart of the number of cloture votes in the Senate in previous congresses:

Cloture voting in the United States Senate, 1947-2008

So if it feels like lately we’ve been hearing about a lot more filibusters than we used to, it’s because senators are filibustering more. Bear in mind that chart only goes up to 2008, and President Obama was inaugurated in 2009, but this is still extraordinary, how the use of the filibuster has been increasing in frequency almost exponentially in recent years. In the final years of the Bush administration, it absolutely exploded.

But, never in all that time, did it become as commonplace as it is now to filibuster presidential nominations. The amount of presidential nominations to be filibustered by Republicans in the Senate over the past five years has broken absolutely every record and—do not believe Republicans—it is absolutely completely unprecedented in all of modern American history since the filibuster was first a Thing. Here’s another little chart for ya:

Filibusters of executive nominees

So even right now, Obama has had to deal with three times as many of his nominations being blocked as the last Democratic president, Bill Clinton. I’m sure Democrats at the time really didn’t like Ronald Reagan, but Tip O'Neill and his friends only sought to completely block debate on two of his nominees. Same thing with Carter before him. So if anything, this extreme and rare parliamentary maneuver began to become more commonplace during the Clinton years, continued to be used during the Bush years, then absolutely blew up during the Obama administration with the Republicans seeming to be a permanent Senate minority.

Alright. Take out your pocket Constitution and refer to Article II, Section 2. If you accidentally ran your pocket Constitution through the laundry or something, here is the relevant section (emphasis mine):

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Really what is happening here is a disagreement among senators as to what exactly is the meaning of “Advice and Consent”. It’s always meant that the Senate has to vote on Executive branch nominees, but when combined with the rampant abuse of the filibuster, this disagreement has led to an unprecedented power grab by the minority of the Senate. The Senate minority, in effect, is attempting to wrest from the grasp of a President whom they hate unabashedly the ability of that President to choose the people who will carry out policy under him and beyond. Or, in the case of Consumer Financial Protection Bureau nominee Richard Cordray, they were trying to kill a law (the one establishing the CFPB among other things) by using the filibuster to block a nominee. You almost have to admire the cleverness of using the very rules of the Senate to subvert the democratic process like this, but really this is a despicable thing that’s happening there, so I’m frankly glad to see it gone.

On a side note, I have heard from Sen. Grassley and others from the GOP that because Obama is attempting to nominate judges for three empty seats on the DC Circuit Court, he is somehow trying to “pack the courts”. Yes, court packing is a real thing and President Franklin Roosevelt tried that shit, but court packing necessarily involves adding more seats to a court to try to change its ideological makeup, and it’s kind of nefarious. This, simply filling the seats of a court that is down three judges, is not that at all. And if Sen. Grassley and his ilk feel that the judges on that court do not have enough to do, that perhaps there should be fewer judges on that court, he is of course free to propose legislation that makes it so. It is simply not appropriate to prevent the President from nominating who he desires to courts only because you don’t like the President and maybe you’d like a Republican president to nominate for those seats. In a democracy such as ours, elections are really expected to have consequences, and the Republicans lost the last two Presidential elections very badly, and the 2012 election in general horrifically. One of those things people (very reasonably) expect to happen after an election is they expect that the bureaucrats running executive branch things in Washington are going to be the same guys they voted for, not whoever doesn’t make the GOP minority in the senate butt-hurt.

So, all in all, it just really sucks that Harry Reid had to do this. It sucks that the gentleman’s agreement he claimed to have with Yertle the Turtle broke down within minutes of his declaration. It sucks that time and time and time again, the Republicans have shown that they simply cannot be trusted with a filibuster that has no limits. They have shown that, like a teenager who drives the family car into a tree, they have lost their driving privileges. Harry Reid took the keys away today, and hopefully we should be seeing a few more things get done over there in Washington as a result (so long as those things don’t involve the House voting on them… ugh). Time will tell I guess, space cadets.