We have become accustomed in recent years to thinking of filibusters in the Senate only as an obstructionist tactic used by the minority party to frustrate the agenda of the majority. Mistakenly, this has been translated into a partisan issue, mostly because the current polarized partisan atmosphere demands attention to short-term goals.
Historically, whichever party is in the majority is frustrated by the filibuster and seeks reform. Whichever party is in the minority defends the filibuster as fundamental to the Senate’s protections of the rights of the minority to debate and amendment. Nelson Mandela once observed, “Where you stand depends on where you sit.”
In recent days, we saw two “filibusters” outside of that mold. Together they illustrate the difficulty in defining a filibuster and the problems of conflating the concept with the occurrence of a cloture vote.
The first was the failure of the Senate to end debate on the confirmation of Debo P. Adegbile to be the assistant attorney general in charge of the Civil Rights division, 47-52. This cloture vote broke new ground.
Last November, the frustration of the majority Democrats boiled over when Republicans blocked a number of President Obama’s judicial and executive branch appointments even without specific objections to the credentials of the nominees. They used a parliamentary sleight-of-hand popularly referred to as the “nuclear option” to reduce the number of votes needed to end debate on such appointments (except for the Supreme Court) from 60 to a simple majority of the Senate. Observers assumed that this would open the floodgates for Obama appointments. It hasn’t quite.
Republicans have used other Senate rules to obstruct judicial appointments in retaliation for what they see as the Democrats’ “power grab.” Angry at the way the Democrats unilaterally changed the rules, Republicans chose to inflict as much pain as possible. Sen. John McCain reportedly told Majority Leader Harry Reid, “I’m going to go kick the crap out of you.”
But, the Adegbile vote was a historic first. This was the first “post-nuclear” failure for a nominee. Seven Democrats broke with the Democratic leadership and the president and voted with all of the Republicans. Therefore, there was no simple majority for confirmation. As director of the NAACP Legal Defense Fund, he had controversially defended Mumia Abu-Jamal on an appeal of his death sentence for killing a Philadelphia police officer in the 1990s.
The second, was the failure to invoke cloture on Sen. Kirsten Gillibrand’s bill to overhaul military sexual-assault policies by taking authority out of the military chain of command. By a 55-45 vote (five votes short), the Senate rejected cloture even though both Majority Leader Reid and Minority Leader Mitch McConnell voted in support. The votes did not follow party lines or normal ideological splits.
There are no senators unconcerned about sexual assault in the military. The Senate, however, is deeply divided over how to address the problem and strengthen the prosecution of such crimes. Competing bills each authored by a Democratic woman senator, Senator Gillibrand and Sen. Claire McCaskill take different approaches.
After months of struggle, Majority Leader Reid worked out a unanimous consent agreement which provided for a procedure that included a cloture vote (requiring 60 votes) for each bill. Also included were provisions precluding any amendments to either bill. In this way the Senate sometimes tests the relative strength of competing controversial legislation.
In recent years, in such circumstances, the cloture process is circumvented and the consent agreement merely stipulates a 60-vote hurdle for adoption. I suspect this wasn’t done in this case because the majority leader thought he might have a better chance of convincing wavering senators to support his view if the vote was technically a procedural vote like cloture rather than a supermajority, up-or-down vote.
While admittedly, such arrangements are made in the face of potential filibuster, sometimes explicit filibuster threats, there is no filibuster occurring. Both sides have agreed to the procedure in order to reach a vote — albeit, a supermajority vote — and to do so without navigating potentially troubling amendments.
Commentators often treat cloture votes as proof positive that a filibuster has occurred. This ignores a range of reasons why a majority leader might choose to trigger one, including blocking amendments that are not germane.
For example, The Journal story bore the headline, “Reed, Whitehouse part of filibuster of bill on handling of sexual assault in military.” I do not know for sure, but I doubt that either Sen. Jack Reed or Sen. Sheldon Whitehouse felt that they were filibustering anything — or Armed Services Committee Chairman Carl Levin, for that matter.
They were presented with side-by-side cloture votes on two competing approaches to addressing the military’s sexual assault problems.
Both had the likely support of a majority of the Senate.