Thursday, November 21, 2013

The Filibuster

It looks like Senate Democrats have decided that they’ve had enough of the obstructionism from Senate Republicans and will, therefore, go forward with the “nuclear option” to amend the Senate’s rules concerning the use of the filibuster. [Note: I started writing this post during lunch, a few hours before the vote was taken…] Now, let me say at the outset that I do think that the filibuster has its time and place; however, I think that the modern filibuster is a poor shadow of what a filibuster is supposed to be and it’s use has been so badly abused that reform was needed.

Once upon a time, in order to filibuster a bill, a Senator had to stand at the lectern and talk and talk and talk and talk. Eventually, either the Senator would tire or the rest of the Senate could recognize the point and move on or something else more pressing would come up and the Senate would table the legislation being filibustered. One of the nice things about that “old school” model was that the filibuster could be tied directly to the Senator leading it and that Senator was virtually obligated to explain his or her objections to the legislation (or nominee) during that floor speech. A senator wasn’t going to stand up before the Senate (and the American people) and say, “I object to this nomination because I didn’t get my way on something else” or “I object to this nomination unless I get my way on something else”. Politics just didn’t work that way. Objection to the legislation or nominee really had to be tied to, well, the legislation or the nominee.

But then the filibuster changed and senators could filibuster a bill without the need for a speech or even really taking responsibility. Rather, the minority party can simply object to bringing legislation or a nominee to a vote and require the majority to muster 60 votes to get around that procedural hurdle. Without 60 votes, the legislation or nomination dies. Do we really want the Senate’s role of providing advice and consent to the President on nominations to require a super-majority, even when objection to a nomination is not based on the qualifications or views of the nominee?

Before I go further, I’d like to share three infographics put out by the Senate Democrats. I think that these infographics are quite illustrative of the problem and why a fix is necessary. (Note: I have not independently checked the statistics in these infographics).

I think that the last infographic is the most telling. You’ll hear Republicans yell and scream that “Democrats did it too” referring to Democratic filibusters of President Bush’s nominees. And, sure enough, Democrats did filibuster President Bush’s nominees 7 times (and objected to Republican efforts to change the filibuster rules). But those 7 Democratic filibusters were 2 fewer than Senate Republicans filibusters of President Clinton’s nominees. Moreover, the sudden uptick in filibusters of President Clinton’s nominees was obviously not tied to Democratic filibusters of President George H.W. Bush’s nominees (who were never filibustered).

I’ve previously written about Republican abuse of the filibuster (such as the time in 2010 that Sen. Bunning filibustered a nomination … that he and every other Republican eventually voted for) or, more importantly, the Republican filibuster of any nominee to head the Consumer Financial Protection Bureau, not because of any objection to the qualifications or even ideology the nominees, but rather because Republicans didn’t get their way when the law that created the Consumer Financial Protection Bureau was passed. (My post Using the Advice & Consent Clause with the Filibuster to Impede the Function of Government includes some history of the filibuster and more examples of abuse.) Remember what Senate Minority Leader Mitch McConnell (R-Kentucky) said (emphasis added):

Earlier this year, 44 of my Senate Republican colleagues and I served notice that we will not confirm any nominee as director, regardless of party, until structural changes are made to make the bureau accountable to the American people — and more transparent.

In late October, Senate Republicans filibustered the nomination of Rep. Mel Watt, President Obama’s nominee to head the Federal Housing Finance Agency. As far as historians can tell, Rep. Watt was the first sitting member of Congress to be successfully filibustered since before the Civil War. And, during the last few weeks, Senate Republicans also filibustered 3 of President Obama’s judicial nominations to the D.C. Circuit Court of Appeals. They did so, not because of ideological opposition to any of those nominees or because any of them were unqualified. Rather, the nominations were filibustered because Republicans don’t want the balance of that court to shift from right to left as it would if the three unfilled positions on that court were filled. Republicans have said that President Obama is trying to “pack the court” by filling vacancies, notwithstanding that no less than the Chief Justice of the Supreme Court has said that those vacancies need to be filled. Of course, Senate Republicans had no problem filling vacancies on that court when the nominations came from a Republican President. Or consider Sen. Lindsey Graham’s (R-South Carolina) threat to block all nominees until he gets additional information about Benghazi (and note further than Sen. Graham’s threat came in the wake of CBS’ bogus 60 Minutes story that had to be retracted once it was demonstrated that the principal source in that story lied).

In fact, the hypocrisy on display from some Republicans is truly stunning (even by the standards of politics generally and Washington politics in particular). Witness, for example, these quotes compiled by Right Wing Watch:

1. Mitch McConnell (KY)

“Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote” (5/19/05).

“Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate” (5/22/05).

2. John Cornyn (TX)

“[F]ilibusters of judicial nominations are uniquely offensive to our nation’s constitutional design” (6/4/03).

“[M]embers of this distinguished body have long and consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster. But, this Senate tradition, this unwritten rule has now been broken and it is crucial that we find a way to ensure the rule won’t be broken in the future” (6/5/03).

3. Lamar Alexander (TN)

“If there is a Democratic President and I am in this body, and if he nominates a judge, I will never vote to deny a vote on that judge” (3/11/03).

“I would never filibuster any President's judicial nominee. Period” (6/9/05).

4. John McCain (AZ)

“I’ve always believed that [judicial nominees deserve yes-or-no votes]. There has to be extraordinary circumstances to vote against them. Elections have consequences” (6/18/13).

5. Chuck Grassley (IA)

It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60” (2/11/03).

“[W]e can’t find anywhere in the Constitution that says a supermajority is needed for confirmation” (5/8/05).

6. Saxby Chambliss (GA)

“I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).

7. Lindsey Graham (SC)

“I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).

8. Johnny Isakson (GA)

I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).

9. James Inhofe (OK)

“This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution” (3/11/03).

10. Mike Crapo (ID)

“[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).

11 . Richard Shelby (AL)

“Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).

12. Orrin Hatch (UT)*

Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).

So Senate Democrats finally decided that enough was enough. Here is Senate Majority Leader Harry Reid’s (D-Nevada) speech in favor of changing the Senate’s rules to do away with filibusters but only for presidential nominations and excluding nominations to the Supreme Court:

Transcript (via Talking Points Memo):

The American people believe Congress is broken. The American people believe the Senate is broken. And I believe the American people are right.

During this Congress – the 113th Congress – the United States Senate has wasted an unprecedented amount of time on procedural hurdles and partisan obstruction. As a result, the work of this country goes undone. Congress should be passing legislation that strengthens our economy and protects American families. Instead we’re burning wasted hours and wasted days between filibusters.

Even one of the Senate’s most basic duties – confirmation of presidential nominees – has become completely unworkable. For the first time in history, Republicans have routinely used the filibuster to prevent President Obama from appointing his executive team or confirming judges.

It is a troubling trend that Republicans are willing to block executive branch nominees even when they have no objection to the qualifications of the nominee. Instead, they block qualified executive branch nominees to circumvent the legislative process. They block qualified executive branch nominees to force wholesale changes to laws. They block qualified executive branch nominees to restructure entire executive branch departments. And they block qualified judicial nominees because they don’t want President Obama to appoint any judges to certain courts.

The need for change is obvious. In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama Administration – during the last four and a half years. These nominees deserve at least an up-or-down vote. But Republican filibusters deny them a fair vote and deny the President his team.

This gridlock has consequences. Terrible consequences. It is not only bad for President Obama and bad for the United States Senate; it’s bad for our country. It is bad for our national security and for our economic security.

That’s why it’s time to get the Senate working again – not for the good of the current Democratic majority or some future Republican majority, but for the good of the country. It’s time to change the Senate, before this institution becomes obsolete.

At the beginning of this Congress, the Republican Leader pledged that, quote, “this Congress should be more bipartisan than the last Congress.” We’re told in scripture that, “When a man makes a vow... he must not break his word.” Numbers 30-2. In January, Republicans promised to work with the majority to process nominations… in a timely manner by unanimous consent, except in extraordinary circumstances.

Exactly three weeks later, Republicans mounted a first-in-history filibuster of a highly qualified nominee for Secretary of Defense. Despite being a former Republican Senator and a decorated war hero, Defense Secretary Chuck Hagel’s nomination was pending in the Senate for a record 34 days, more than three times the previous average. Remember, our country was at war. Republicans have blocked executive branch nominees like Secretary Hagel not because they object to the qualifications of the nominee, but simply because they seek to undermine the very government in which they were elected to serve.

Take the nomination of Richard Cordray to lead the Consumer Financial Protection Bureau. There was no doubt about Mr. Cordray’s ability to do the job. But the Consumer Financial Protection Bureau – the brainchild of Senator Elizabeth Warren – went for more than two years without a leader, because Republicans refused to accept the law of the land – because they wanted to roll back a law that protects consumers from the greed of big Wall Street banks.  I say to my Republican colleagues, you don’t have to like the laws of the land. But you do have to respect those laws, acknowledge them and abide them.

Similar obstruction continued unabated for seven more months, until Democrats threatened to change Senate rules to allow up-or-down votes on executive nominees. In July, after obstructing dozens of executive nominees for months, and some for years, Republicans once again promised that they would end their unprecedented obstruction.

One look at the Senate’s Executive Calendar shows nothing has changed since July.  Republicans have continued their record obstruction as if no agreement had ever been reached. Republicans have continued their record obstruction as if no vow had ever been made. There are currently 75 executive branch nominees ready to be confirmed by the Senate that have been waiting an average of 140 days for confirmation. One executive nominee to the agency that safeguards the water our children and grandchildren drink and the air they breathe has waited more than 800 days for confirmation.

We agreed in July that the Senate should be confirming nominees to ensure the proper functioning of government. But consistent and unprecedented obstruction by the Republican Caucus has turned “advise and consent” into “deny and obstruct.”

In addition to filibustering a nominee for Secretary of Defense for the first time in history, Senate Republicans also blocked a sitting member of Congress from an Administration position for the first time since 1843. As a senior member of the House Financial Services Committee, Congressman Mel Watt’s understanding of the mistakes that led to the housing crisis made him uniquely qualified to serve as administrator of the Federal Housing Finance Agency. Senate Republicans simply don’t like the consumer protections Congressman Watt was nominated to develop and implement.  So they denied a fellow member of Congress and a graduate of Yale Law School even the courtesy of an up-or-down vote.

In the last three weeks alone, Republicans have blocked up-or-down votes on three highly qualified nominees to the D.C. Circuit Court of Appeals, considered by many to be the second highest court in the land. Republicans have blocked four of President Obama’s five nominees to the D.C. Circuit, whereas Democrats approved four of President Bush’s six nominees to this important court. Today, 25 percent of the D.C. Circuit Court is vacant. There isn’t a single legitimate objection to the qualifications of any of these nominees. Yet Republicans refused to give them an up-or-down vote – a simple yes-or-no vote. Republicans simply don’t want President Obama to make any appointments at all to this vital court.

Further, only 23 district court nominees have been filibustered in the entire history of this country.  Twenty of them were nominated by President Obama. With one out of every 10 federal judgeships vacant, millions of Americans who rely on courts that are overworked and understaffed are being denied the justice they rightly deserve. More than half the nation’s population lives in a part of the country that’s been declared a “judicial emergency.”

The American people are fed up with this kind of obstruction and gridlock. The American people – Democrats, Republicans and Independents – are fed up with this kind of obstruction and gridlock. The American people want Washington to work for American families once again.

I am on their side, which is why I propose an important change to the rules of the United States Senate. The present Republican Leader himself said, “The Senate has repeatedly changed its rules as circumstances dictate.” He is right. In fact, the Senate has changed its rules 18 times by sustaining or overturning the ruling of the presiding officer in the last 36 years, during the tenures of both Republican and Democratic majorities.

The change we propose today would ensure executive and judicial nominees get an up-or-down vote on confirmation – yes or no. This rule change will make cloture for all nominations other than Supreme Court nominees a majority threshold vote – yes or no.

The Senate is a living thing. And to survive, it must change. To the average American, adapting the rules to make Congress work again is just common sense. This is not about Democrats versus Republicans. This is about making Washington work – regardless of who’s in the White House or who controls the Senate. To remain relevant and effective as an institution, The Senate must evolve to meet the challenges of a modern era.

I have no doubt my Republican colleague will argue the fault lies with Democrats. I can say from experience that no one’s hands are entirely clean on this issue. But today the important distinction is not between Democrats and Republicans. It is between those who are willing to help break the gridlock in Washington and those who defend the status quo.

Today Democrats and Independents are saying enough is enough. This change to the rules regarding presidential nominees will apply equally to both parties. When Republicans are in power, these changes will apply to them as well.  That’s simple fairness. And it’s something both sides should be willing to live with to make Washington work again.

I think that rules that give the minority the ability to slow down a majority intent on “steam-rolling” the minority is probably a good idea. Rules that lead to reasoned debate are good rules. Rules designed to force the parties to work across the aisle or to craft bipartisan comprise are good rules. But when any rule is abused and is used, not for the purposes for which it is intended, but to prevent the majority from actually governing, to deprive a President of his Constitutional authority, and in manner that is devoid of substantive objection, then it is time for that rule to be re-considered. The filibuster has its use but that use has been abused. Badly. And that abuse has been bad for the functioning of the government, has rendered a key power of the President a near nullity (absent a super-majority), and renders the old claim that “elections have consequences” a farce.

It is time for Democrats to pull the trigger and reform the filibuster. And they did.

Postscript: I really detest the phrase “nuclear option” to describe a change in rules. Nuclear war suggests millions, even billions of dead people. It suggests all out war with no hope for survival. It suggests, well, evil. Changing rules of order within a democratic process is not akin to nuclear war any more than a faulty website is akin to a hurricane or a war. Analogies are fine, but they need to be appropriate. Nuclear option as an analogy for changing rules to avoid abuse is not such an appropriate analogy.

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