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Posted at 9:35 AM ET, 12/27/2010

Nominations and the filibuster in the 112th Senate

By Jonathan Bernstein
Jonathan Bernstein writes about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.


First of all, thanks to Greg for asking me to fill in for him. As they say, I'll be here all week. I'm a blogging political scientist...there's starting to be a whole lot of us who study American politics and also blog about it, and collectively I think it's become a great resource.

On to business. I'll start with the pending renomination of Peter Diamond for a seat on the Fed and the observation that we really have no idea what's going to happen with executive branch and judicial nominations in the new Senate. Here's the important thing to understand about life in the now-expired 111th Senate: near as I can tell, every single nomination made by Barack Obama -- certainly every nomination that made it through committee -- had the support of at least 60 Senators, and yet every single nomination was filibustered. 

Is that really true? Yup. The key to this is to understand that to filibuster something isn't (necessarily) to speak out against it; to filibuster something simply involves insisting on 60 votes, and/or insisting on using other tactics available to individual or small groups of Senators that have the effect of making confirmation more arduous for the majority. Even supermajorities of 60.  Even very large majorities.

Now, as long as 60 Senators agree, it's possible to defeat a filibuster, but the costs, as Oregon Democratic Sen. Jeff Merkely and other reformers have noted, are almost entirely absorbed by the majority. Thus, even if absolutely no one actually opposes a nomination, it still makes sense for anyone opposed to other items in the majority's agenda to filibuster that nomination, because it takes away time from those other items, leaving the majority with a choice of either jettisoning one or the other. 

What will happen to nominations in the 112th Senate? It's no longer necessary for Republicans to use the Senate filibuster to slow down the Democrats' agenda; the Republican House will do that, quite effectively. So Sen. Lamar Alexander (R-Tenn.) argues that we'll see fewer filibusters, and it's certainly possible that Republicans may stop using additional delaying tactics against non-controversial nominations. 

However, since filibustering imposes virtually no costs on the minority, at least in the modern Senate in which the norm against filibustering is long gone, there's every incentive for the minority to filibuster even if they don't really oppose something (or, for nominations, someone). Legislating -- actually, in the American system, all of governing -- is all about bargaining, and the filibuster under current rules gives opponents of anything a powerful bargaining chip. 

That was true for smaller minorities in the 111th Senate, who could only threaten to chew up (valuable) floor time. It will be even more true for larger minorities in the 112th Senate, who can actually threaten to use the filibuster to defeat nominations. So I think Alexander is wrong; while it's impossible to see more filibusters (since by insisting on 60, Republicans already filibustered everything), it's very likely we'll see just as many. And that makes the question of Senate rules reform absolutely critical. I've written before about various reform proposals and suggested my own, and later today I'll look at what Merkely has to say about filibuster reform.

By Jonathan Bernstein  | December 27, 2010; 9:35 AM ET
 
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Comments

Do the Democrats really want to shoot themselves in the foot, getting rid of filibusters when they might be back in the minority in 2012?! Go ahead, as was just pointed out, the House will now be able to block anything the Senate pushes through. I have wondered about the left whining about filibusters when they were just fine to use back in Obama's day. If the GOP take back the Senate, maybe they should just hold 10-20 cloture votes per day, then Greg's little chart will skyrocket.

Posted by: clawrence12 | December 27, 2010 10:45 AM | Report abuse

Welcome to the Plumline Jonathan. It's very difficult to discuss filibuster reform without really knowing the particulars of what is being proposed. I would be in favor of limited reform but not necessarily full scale reform. Isn't it true also that any new Congress can set their own rules as the majority? I'm not much of a Senate scholar so don't really understand the ramifications of all of this. I'll look forward to being informed by you and I'm sure some of the posters on this board will have better informed opinions than mine.

Anyway, I look forward to reading your posts this week.

Posted by: lmsinca | December 27, 2010 11:00 AM | Report abuse

I like the filibuster. If I had my way I'd remove the ability to invoke cloture.

Posted by: BradG | December 27, 2010 11:27 AM | Report abuse

I would just like for them to GROW UP, and DO THEIR DAMNED JOB!

Posted by: taroya | December 27, 2010 11:31 AM | Report abuse

The Democrats were more than happy to use the filibuster when Republicans were the majority (example: conservative initiatives to cut Federal spending during several different administrations: Reagan, Bush, even Clinton) or when a conservative was being nominated (example: Robert Bork) but the liberals constantly cry foul when Republicans use the filibuster to stop liberal extremist policies or nominees from being approved.

The bottom line is despite the progressive cries for more government spending to "prime the pump", we are draining the well with so much federal debt. We must significantly cut federal spending and start eliminating this monsterous debt before it crushes us. We can't afford to wait any longer....and the liberals/progressives need to wake up and clear all of the roadblocks that they have thrown up to try to block meaningful debt and spending reduction.

Posted by: honorswar26 | December 27, 2010 11:43 AM | Report abuse

There is an underlying assumption in the essay that should be discussed more thoroughly. That assumption is that these nominations are somehow politically neutral. They aren't.

Looking at the massive usurpation of our rights planned by the vast bureaucracy and the million plus member standing government I certainly hope that every nominee put forth by Mr Obama is thwarted.

What Mr Obama cannot achieve through congress he seeks to obtain through executive fiat. The EPA and FCC are classic examples. Diminishing the abilities of the executive by depriving it of both leadership and money is a short term way for a minority party to get an over bearing and freedom threatening government brought to heel.

The idiots in DC have done enough damage. It is long past time for us to lay off a few hundred thousand civil servants and reclaim our rights.

Posted by: skipsailing28 | December 27, 2010 11:46 AM | Report abuse

In so many ways, the Senate is truly anti-democratic.

Posted by: HillRat | December 27, 2010 11:55 AM | Report abuse

It is naive to believe that filibuster reform, whether initiated by Democrats or not, won't be initiated when and if Republicans gain control of the Senate with less than 60 votes in an upcoming congress. Considering the lengths to which Republicans are willing to go to enforce on the American people their disingenuously erroneous view of the will of the American people, why in the world does anyone think they won't change Senate rules to prevent Democrats from doing to their agenda what they have done to the Democrats' agenda since Dems wrested control of the Senate and put the Republicans in the minority? I don't.

Posted by: lwchafin | December 27, 2010 11:55 AM | Report abuse

The future should be that you have to talk the whole time and that cloture is a majority (51 vote) deal. Look, people, Democracy DOESN'T mean rule by a minority with 41 votes and a tiny percentage of representation of the US population.

If filibuster continues along the current trend lines, Canada is a better choice for quality of life, even though it is so cold up there.

Posted by: bert8 | December 27, 2010 12:03 PM | Report abuse

The great masters of the filibuster are gone now. I believe the role of the Senate as the delegates of the states gives the filibuster an added significance. The question is the number of votes for cloture. 60 appears to be a compromise between a simple majority and two-thirds. Without the great speakers like the Byrds and Thurmond it is less entertaining, but does serve a purpose in delay or defeat of bad law.

Posted by: JarlWolf | December 27, 2010 12:04 PM | Report abuse

Yes, welcome, Jonathan. I don't know what kind of filibuster reform would work best and what unintended consequences there might be if it were enacted, but it's certainly true that the filibuster is a far different animal than it was years ago. It was often pernicious, particularly when it was used to block things like anti-lynching laws and other civil rights legislation, but its use was rare. The current frequency with which it's used reminds me of the way basketball became an utterly frustrating sport when the team with the lead simply kept the ball (with an admittedly skilled weave) and ran out the clock. When the shot clock was introduced, that restored the energy and got rid of the stalemate effect. The best filibuster reform should probably keep it as a major weapon in the political arsenal but get rid of the generalized obstruction that allows relatively small minorities a ridiculous amount of power and ability to thwart the public will.

Posted by: AllButCertain | December 27, 2010 12:09 PM | Report abuse

The great masters of the filibuster are gone now. I believe the role of the Senate as the delegates of the states gives the filibuster an added significance. The question is the number of votes for cloture. 60 appears to be a compromise between a simple majority and two-thirds. Without the great speakers like the Byrds and Thurmond it is less entertaining, but does serve a purpose in delay or defeat of bad law.

Posted by: JarlWolf | December 27, 2010 12:10 PM | Report abuse

honorswar26:
"and the liberals/progressives need to wake up and clear all of the roadblocks that they have thrown up to try to block meaningful debt and spending reduction."

Such as.... what? You mean irresponsibly cutting taxes while simultaneously increasing spending? Oh wait I forgot, that wasn't the liberals.

Anyway, on topic: I wouldn't be so opposed to the filibuster if they actually, you, know, did it. These days you just have to say "filibuster" and the legislation is dead. Make them stand up there like Strom Thurmond making an idiot of himself for 24 hours speaking against the Civil Rights Act. Let them go on TV and read the phone book or whatever and let everyone see them acting like petulant children.

Posted by: presto668 | December 27, 2010 12:28 PM | Report abuse

lwchafin, you do realize that the GOP were in control of the Senate when Democrats (including Obama) used the filibuster, right? Although the GOP threatened the nuclear option, they never pulled the trigger.

Posted by: clawrence12 | December 27, 2010 12:29 PM | Report abuse

Get rid of filibusters, anonymous holds and super-majority votes. A simple majority works just fine. Just do your job, get down to business and stop preening. The congress is the one crimnial organization that can't function properly.

Posted by: jckdoors | December 27, 2010 12:29 PM | Report abuse

Howdy everyone,

I don't know that I'll have time to drop into comments much, but I'll at least be reading them.

AllButCertain,

I think that's about right. The rules turned out to have a loophole, and when it's fully exploited the game doesn't work very well. Unfortunately, it's a lot easier to diagnose the problem than to find the right fix. I'll be looking at
Senator Merkely's ideas later today.

Imsinca,

It's actually contested whether or not a new Senate can adopt new rules by majority vote; the Senate is a "continuing" body, with permanent rules which specify that it takes a 2/3 vote to change the rules. However, most Senate scholars believe the only thing preventing Senate majorities from acting are the political consequences, so I'd say, yes, they can change their rules on Day One or any other day.

For those who are interested in my proposals, see:

http://plainblogaboutpolitics.blogspot.com/2010/08/dodd-and-senate-reform.html

Posted by: Jonathan Bernstein | December 27, 2010 12:32 PM | Report abuse

The next Senate there isn't much Obama is expecting to get done: perhaps on education, perhaps on energy but that is about it.

Thus the Senate can focus on passing Obama's nominations and if the Republicans try to filibuster them then Reid can just allow the time on the floor to pass each individual nominee if necessary.

Posted by: maritza1 | December 27, 2010 12:39 PM | Report abuse

The Democrats need to eliminate the filibuster, regardless of the possible future consequences. When the Repukes hold power, they don't allow secret holds or filibusters by democrats anyway. Look at how they behaved.

When in power the republicans abuse the filibuster to force thru unpopular or illegal legislation (Bush tax cuts, Patriot Act, Peruring jurists Thomas, Roberts and Alito, war criminals like Bybee, etc), How - by not allowing any filibusters to occur, they simply ignore the rules. When out of power they abuse the filibuster to stop legislation the country wants or needs - HCR, closure of Gitmo, etc. In other words, it will make a difference for the next two years, and if the repukes get power again in 2012, it won't matter anyway.

Posted by: pblotto | December 27, 2010 1:12 PM | Report abuse

Mr. Bernstein, were you part of Ezra Klein's Journ-O-List?

Posted by: clawrence12 | December 27, 2010 1:38 PM | Report abuse

clawrence12, did you participate with the House Committee on Un-American Activities?

Posted by: bsimon1 | December 27, 2010 1:48 PM | Report abuse

No. See how easy it is to actually answer questions?

Posted by: clawrence12 | December 27, 2010 4:57 PM | Report abuse

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