Tuesday, February 12, 2013

Hey, Reporters: 60 Votes Required Means Filibuster

Okay, this may appear to be redundant and overkill, but as long as people are still getting it wrong...

I've been criticizing some reporters on the Hagel nomination because they've been saying either that Republicans won't filibuster or that it's not clear whether Republicans will filibuster, when in fact it's been clear for four years that Republicans have established a 60 vote requirement on practically everything.

Josh Rogin's reporting made it a bit more clear today what's going on:

"We're going to require a 60-vote threshold," Inhofe told The Cable. 

Cornyn told The Cable, "There is a 60-vote threshold for every nomination."
Look, you can't get clearer than that last one, from the Senate Republican Whip. Can you?

Now, Republicans seem to find the word "filibuser" toxic, so Inhofe also said "It's not a filibuster. I don't want to use that word." That's up to him, but reporters need to take note and be careful: it's not sufficient to ask Republicans about "filibusters." You might get spin, and not reality.

In the real world, however, what matters is what Cornyn said. It takes 60 votes to do anything in the Senate. That's true whatever they call it, and it's true whether or not anyone actually forces a cloture vote.

And, yes, that's a filibuster.

Which is why it's ridiculous to claim that there's never been a filibuster against a cabinet nomination before; every single nominee that Barack Obama has sent up has been subject to 60 votes.

I wrote more about the Hagel situation earlier today, but again, this is really simple. Everyone covering the Senate needs to understand that Republicans are requiring 60 votes for everything; that they've been doing so since January 2009; that prior to 2009, filibusters were frequent (since January 1993) but not universal; that very few Republicans have voted yes on cloture but no on the underlying substance on anything since January 2009; and that the name for requiring 60 votes is "filibuster."

And I'll remind everyone again: to say that something is being filibustered does not mean that it has lost; sometimes things are defeated by filibuster while sometimes they pass despite a filibuster. A bit trickier is how to write about whether "Republicans" are filibustering; I usually feel comfortable saying they are because all Republicans back the 60-vote standard even when they are part of the 60, but I could imagine other ways of discussing it. What is important to avoid is the notion that something was not filibustered, even if it had very few opponents; surely, those opponents were not simply opposing, but filibustering.


  1. So this is all of a kind with the nullification post, because what we're talking about is the refusal on the part of the minority to allow the majority to govern.

    I really liked Chait's second essay on the discussion of the Calhoun rationalizations that now form the basis of conservative thought. He was mean, as usual, with the essential argument that nullification is the last resort of sore losers.

    Nonetheless.... There is California. And Massachusetts. And the rest of New England. And in five years, Texas.

    What else can they do?

  2. There was at least one case where the confirmation vote for an appointee was less than 60 but the cloture vote was over 60--Sunstein.

  3. Should we consider Susan Rice to have been successfully filibustered even though technically she was never nominated?

    1. Good question. I'm not sure we can answer it without data on how Dems would have voted. If she wasn't going to make 50, then she was just a failed nominee, not a filibustered one. Harriet Myers is a more clear example of a failed nominee; she looked like she was on course for about 10-20 votes.

      However, this post and thread brings up another thought: do we need to distinguish between filibusters and supermajority vote thresholds? The root of filibuster as a term was that people were hijacking debate. Since majority leaders just back down in the face of filibuster threats, is that actually just a super-majority requirement, since no floor time has actually been wasted (and, often, not all that much whip time)?


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