Gridlock: The New Normal

By: Andrew Strauss

Anyone who has passed a first grade math class knows that if 51 people out of 100 want something, majority rule says that those 51 people get what they want. Not so if your place of business is the United States Senate. The filibuster is a method used by Senators, usually in the minority party, to prevent the Senate from conducting business. The filibuster is something we all learn about in civics class, a Senator rising and reading from the phone book in order to prevent the passage of a controversial bill. The Senator cannot sit and cannot leave the chamber for any reason, not even to use the restroom.

The past year saw two high-profile filibusters. Senator Rand Paul from Kentucky spoke for nearly 13 hours when he decided to filibuster John Brennan’s nomination as Director of the CIA.  Senator Paul spoke about the use of drones to kill suspected terrorists overseas. Paul was concerned about drones being used on American citizens. The other filibuster occurred in Texas only a few weeks ago. The filibuster is a tool that is used at the state level as well. State Senator Wendy Davis spoke for 11 hours and 39 minutes in an effort to prevent a restrictive abortion bill from passing. There was a time limit on the vote, and due to Davis’s filibuster, the bill’s time limit was reached. The Texas Senate did pass the bill, however, when a special session of the legislature was called.

These “talking” filibusters captured the attention of the media, becoming big stories. That is because this kind of filibuster is a thing of the past. While there are not different types of filibusters, the goal of the filibuster can be achieved in different ways. To overcome a filibuster, the Majority Leader files a motion for cloture. A party can say that we will not allow a vote unless there is a 60-vote threshold, essentially filibustering whatever the Senate is considering. At this point, the Majority Leader files cloture. 60 Senators must vote “yes” or the Senate cannot conduct its business. In today’s Senate, cloture is rarely agreed to, more on that later. The “Cloture Rule” was passed in 1917. Before the cloture rule existed, there was no way to control debate on a matter the Senate was considering. This filibuster doesn’t require a Senator to stand and speak; it only requires them to request that cloture be invoked. There is no curiosity as to what the Senator has to say. There are no media outlets carrying it live because there is simply nothing to carry, there is no action on the floor. It’s simply the use of an arcane rule to prevent business from being conducted. A request for cloture was a rarely used procedural rule. Cloture was requested only five times between 1917 and 1970. Since 2007, however, cloture has been requested 428 times.

The people who are elected to the Senate are the reason why gridlock occurs. Republicans and Democrats have always played politics with each other, but usually found some sort of middle ground to get legislation passed. The current Republican Party has pushed too far to the right. The middle ground that Democrats and Republicans once sought has followed the Republican Party to the right. The Republicans are loath to agree with anything Senator Reid or President Obama proposes. This is why gridlock has occurred. Democrats do not have 60 votes in the Senate, so when cloture is filed, whatever bill or nomination the Senate was considering will not pass due to simple math. If cloture is filed, some Republicans must join with the Democrats in order for the Senate to move on with its business. Recently, however, Senate Republicans have been reluctant to give their approval for anything. This means that when cloture is filed, it usually marks the end of the Senate’s consideration on the matter. Using a filibuster for bills was historically how the rule was used. What has brought the filibuster into the news lately has been the Senate’s inability to get President Obama’s nominees to various federal agencies confirmed. Republicans admitted that these nominees were highly qualified, yet were reluctant to cross the aisle and join with Democrats to get them confirmed. This process essentially left job vacancies in federal agencies empty.

Democrats, especially Majority Leader Harry Reid, have grown frustrated by this process. Senator Reid has threated to use the “nuclear option” in an effort to unclog the Presidential nominees waiting for a vote. The nuclear option would allow a simple majority, 51 votes, to confirm Presidential appointments. Republicans, and some Democrats, argued that changing the rules would allow whichever party was in the majority to essentially do whatever they wanted. Senators worried that the 51-vote threshold would spread to other areas of Senate confirmation, essentially killing the filibuster. No longer would the minority party have any real power to stop legislation or controversial nominees.

This fight over nominees getting confirmation votes came to a head a few weeks ago. The Republicans, fearing that Senator Reid would actually employ the nuclear option, joined with Democrats on a deal to confirm several of President Obama’s nominees. Tweleve Republicans joined the Democrats to confirm Richard Cordray’s nomination to the Consumer Financial Protection Bureau. Cordray’s nomination had been pending in the Senate for nearly two years. The deal hinged on the National Labor Relations Board. The Republicans demanded that President Obama withdraw his controversial nominees to the NLRB. In return, Republicans guaranteed that his new selections for the vacancies would be confirmed.The deal did not change any of the filibuster rules and it did not prevent Senator Reid from changing the rules in the future. It is simply a short-term fix to get some nominations through the Senate.

Many experts see more filibuster battles on the horizon. Senate Republicans are standing firm on their threat to block President Obama’s nominees to the D.C. Circuit Court of Appeals. The Republicans say that this court is underworked and does not need any more judges. The Senate has actually unanimously approved President Obama’s nominees to the 8th and 10th Circuits, both of which have fewer cases per judge than the D.C. Circuit Court. Democrats argue that this is simply the Republicans trying to keep the court’s conservative majority. The Court has 11 seats, 3 of which are vacant. Of the 8 judges, Republican presidents appointed 4 and Democrat presidents appointed 4.If President Obama’s nominees were to be confirmed, Democrats would hold the majority on the court.

Either way, the Senate is likely headed towards another showdown over the filibuster. Democrats are wary of using the nuclear option because if a Republican president were elected and if Republicans took control of the Senate, Democrats would have no way to stop nominees from being confirmed. The nuclear option could extend to other areas of Senate confirmation and could result in Democrats being unable to prevent a controversial nomination for something other than an executive agency from moving forward. This is why Democrats are wary of pressing the nuclear button. What is most likely to happen is another fight on the Senate floor between Senator Reid and Senator McConnell. It will be interesting to see if Reid is daring enough to actually push the nuclear button, or if another deal is reached to get Obama’s nominees to the D.C. Circuit confirmed. Whatever happens, the Senate needs to do its job. It cannot be allowed to do nothing anymore. There is nothing wrong with a Senator filibustering, but it should be done like Senator Paul’s and Senator Davis’s. While the bills filibustered in Senator Paul’s and Senator Davis’s cases did eventually get passed, the Senate needs to decide if blocking the majority’s will is important enough to keep the filibuster in place or if the majority’s will should be accepted, but after a long drawn out process. The cloture motion is a cowardly way to get your point across. Senators should stand for what they believe in.

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