Executive Branch Filibusters Aren’t Gone, Just Swept Under the Rug

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Jonathan Bernstein points out today that the Democratic victory over filibusters of executive branch nominees wasn’t quite as total as some of the reporting has suggested. After all, Republicans didn’t agree to stop the filibusters. They just agreed to provide 60 votes for cloture when needed:

Yup. There was a cloture vote this morning; forcing a cloture vote is already a form of filibuster. And then Republicans are insisting, as they did yesterday with Richard Cordray, to use at least a decent-sized chunk of post-cloture time….Without any filibuster at all, Harry Reid could call up the nomination, allow anyone who wanted to speak to do so, and then move ahead with a final confirmation vote; it would probably take one or two hours at most, and maybe a lot less if no record vote was called for.

What’s different, post-deal, is that Republicans have apparently agreed that these filibusters will be limited — that they will avoid defeating cloture on executive branch nominations, and thus allow Democrats to confirm those nominees as long as they have a simple majority. They can still filibuster, however, and it’s not as if it’s meaningless; it does, in fact, use up Senate floor time that could be used for something else, and it’s not unusual for Senate floor time to be valuable.

This has always been an underappreciated facet of the Senate filibuster. Republicans routinely filibuster people and bills that they have no real problem with, which is why you occasionally have a filibuster one week followed by a 98-0 vote the next week to approve something (or someone). Why? Because it sucks up floor time, and the more time spent on useless stuff like this, the less time there is for passing actual legislation.

Bernstein’s conclusion is that this puts Republicans in a pickle (five or six of them have to take one for the team and vote for cloture after each filibuster), so they should agree to simply institutionalize a 51-vote cloture for executive branch nominees. But he and I have disagreed about this for a long time. My conclusion is simpler: Reid should have gone nuclear and done away with executive branch filibusters entirely.

On a related note, this also explains why Republicans went along with this compromise. They didn’t, as was widely reported, suffer an unconditional defeat. Not even close. Given the number of Senate confirmations required each year, the continued ability to delay Senate business for every nominee is a very powerful tool, and it’s one they still have because Reid took his finger off the nuclear button.

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