Tuesday, February 26, 2013

Talking about the Hagel Filibuster

The Senate is taking up cloture on the Chuck Hagel nomination today, and this time it's expected to pass, most likely easily -- I haven't seen any estimates, but I'm guessing it will be around 70 votes (maybe more; again, I haven't seen anything about what Republicans will do). Some time after that, we'll get a final vote on Hagel; he'll probably fall short of 60 yes votes.

So it turns out we had not only had one or more "yes/no" votes, who were yes on cloture but no on the nomination, but quite a few no/yes/no votes: against cloture the first time, for it the second time, while eventually voting against confirmation.

The trick for reporters is how to write about and talk about what's happened.

Was there a filibuster?

Yes. Of course.

One more time: requiring 60 is a filibuster. Every Republican supports that standard. There are no Republicans who believe that 60 should never or only rarely be invoked; the only question is whether, in this particular case, any particular case, they will support the filibuster. That there is a filibuster, on everything, is both assumed and institutionalized.

Moreover, every Republican who opposed cloture on the first go-round was supporting the filibuster. As it will turn out, some of those Republicans were only supporting the filibuster for a limited time. That still means they supported it!

Also, and as obvious as this is I've seen lots of people get confused by it: the fact that a filibuster is eventually defeated makes it a failed or defeated filibuster; it doesn't mean that there was no filibuster at all (or else Strom Thurmond's record-setting filibuster against civil rights wasn't really a filibuster!).

Perhaps some of the confusion on this has to do with the motives of filibustering Senators. That's what PolitiFact gets wrong in a piece they did on the Hagel filibuster a while ago (they properly cited Greg Koger, Sarah Binder, and Steve Smith all saying that it was a filibuster, and yet wound up calling GOP claims that it was not a filibuster only "Mostly False" rather than "False" or "Pants on Fire"). It is quite true that Senators may try to delay a final vote for various reasons. They may be attempting to prevent any final vote and therefore defeat the measure under consideration, but they may also use a delay in order to make a deal, or simply to allow more time for opposition to form. Indeed, it appears in Hagel nomination that GOP opposition of cloture the first time around was a combination of all those things. Some Senators -- Inhofe, Cruz, maybe as many as 30 or 35 others -- just wanted to defeat Hagel. Lindsey Graham said at the time that he wanted to block the nomination until the Obama Administration turned over information to him. And McCain (joined by up to about 15 others) sometimes joined in Graham's argument, and at other times just said he wanted more time in case some "bombshell" was found.

Those are all different, and worth distinguishing -- but they're all filibusters!

Indeed, assuming that cloture is invoked today, the next step would be a vote, but if Republicans insist on taking up the full available hours of post-cloture time, then technically it would be proper to say that the filibuster continues. Even though at that point all the filibuster does is delay the vote further to a time certain, it's still a delay, and a delay is a filibuster.

The one thing that I'll say is a bit tricky is whether it's correct to say that "Republicans" are filibustering. In this case, for example, a few Republicans did support cloture the first time around; certainly they were not supporting the filibuster...but most Republicans were. Sometimes, however, it's harder to know, especially when the delay doesn't produce an actual cloture vote, or when Republicans are more split. It seems to me that it's correct to say that Republicans are filibustering in that all of them, without exception, support the 60-vote standard -- even for those times when they are part of the 60. But clearly not all Republicans actually support the filibuster on everything; sometimes, very few of them support the filibuster, even though they all support the concept of the 60-vote standard. Yes, it's tricky to write about that; what I think reporters should strive to do is to find language that reflects the reality of the Republican-imposed 60-vote standard, on top of language that reflects what Republicans (and, for that matter, Democrats) are actually doing on any vote.

At any rate, there's no question about whether there has been a filibuster on Chuck Hagel. What I'd say is that there's also no question about whether there's been a filibuster against every nominee; there has been. Even the ones who had unanimous support. As long as they insist on 60, it's a filibuster.


  1. I'll reiterate what I said in a post you made on the filibuster a while back:

    Do we need to distinguish between dilatory actions and actions meant to actually defeat the matter at hand with less than a majority vote?

    I think that the problem is that, for most of the last 100 years, dilatory actions have ALSO been actions to defeat the matter at hand. But what if the minority is just being dick-ish?

    1. Matt, a *lot* of traditional filibusters had been to "make a point" and delay measures whose eventual passage was widely recognized as inevitable. The southerners were under no illusion they could stop the Civil Rights bill of 1957. (In fact, some of them privately *wanted* it to pass because it was very watered-down and yet would be a boost to the 1960 presidential prospects of LBJ, whom most of them supported.)

    2. Point taken, but does that really obivate the need for us to clarify what a filibuster IS?

      Is it dilatory maneuvers meant to delay or an attempt at having a minority veto over legislation? The first can serve the second, but the two concepts don't perfectly overlap. Yet, we seem to use the term "filibuster" to mean both of them.

    3. It's worth noting that non-filibuster delays have become an immense problem in the Senate. The average judge nominated under Obama has faced over a 200 day wait to be appointed ( http://www.theatlantic.com/politics/archive/2013/02/the-tortuous-protracted-wait-to-confirm-judges-from-abe-to-obama/273485/ ). We're looking at a Senate ground to a halt ( http://www.newyorker.com/reporting/2010/08/09/100809fa_fact_packer ), so to some extent it doesn't matter whether a filibuster is "only a delay." The delays are already toxic.

    4. Maybe we could just say dilatory filibuster and veto filibuster, although the latter may step on presidential toes. (Or, in the second case, like absolutely everything else, we could call it the nuclear option.)

    5. I can understand the filibuster if it is being used to consider the subject in more detail, but in any other case it is a waste of time. There is no need for any party to make a point to the other simply because they are in a different political party. In the issue of presidential nominations they should only be considering whether or not the person is capable in preforming the functions of the office that they are being considered for. I recently wrote a post about this type of partisan warfare if anyone wants to check it out its calledChildhood Diplomacy.

    6. And now we have Rand Paul, voting twice against cloture and voting FOR Hagel.

      I dunno...is it just me, or is the term doing too much heavy lifting?

  2. If reporters are going to go to this level of detail, they should also report that Democrats are choosing to allow the filibuster to happen, and they could vote to end the filibuster at any time with a majority vote.

    1. But why would the majority choose to protect the majority view? Why is that logical? Schumer was against filibuster abuse reform. Levin against. Boxer against. Harkin for it.

    2. The most obvious answer is that they share the minority view, it's just expensive for them to say so publicly. This way, they get to whine about a minority blocking the will of the majority, without having to actually do anything to advance the "majority" view.

      I think that's far more likely than any fuzzy notions of payback in some future where they are once again the minority.

  3. This is just making the Republicans look bad. The Democrats are allowing the filibuster because they know that the media will use it to make the Republicans look bad. They could stop it, the media could report that they could have stopped it, but that would require either a) going above partisan agendas or b) actual journalism.


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