February 7, 2013

After four-plus years of the 60-vote Senate, many reporters apparently still don’t get it. I still see reporters and pundits asking whether there will be filibusters on particular items, such as, most prominently right now, the Chuck Hagel nomination.

The answer is simple: Of course there’s a filibuster, as there is on everything. Everything needs the 60 votes needed to invoke cloture. Anyone counting votes on something coming before the Senate is counting to 60, not counting for a simple majority.

That’s why the key vote on Hagel has always been John McCain, not Chuck Schumer; getting all 55 Democrats (that is, 55 percent of the Senate) was never going to be enough.

And it’s also why Carl Levin needs to cater to McCain and other Republicans, as he’s doing now by delaying the final committee vote (after Ted Cruz and other Republicans decided to engage in what veteran hill watcher Norm Ornstein considers “unprecedented” requests). It’s possible that Levin may just be trying to maintain comity within his committee, but looming over everything is that a party-line vote on cloture won’t be enough to get Hagel confirmed.

Remember, all of this is new. It used to be (roughly before 1993) that most nominees and most legislation needed only simple majorities; even after 1993, all the way up through 2008, filibusters were not universal.

Now, to say that there’s a filibuster doesn’t mean that the filibustering side will win; reporters need to learn how to talk about losing filibusters under modern conditions, which look nothing like, say, Strom Thurmond’s famous record-breaking losing filibuster against civil rights legislation. But they’re (losing) filibusters, just the same. It’s also certainly worth noting that McCain and perhaps one or two other Republicans have indicated they could vote for cloture and then against confirmation. That’s a significant part of this story, too. But it’s significant because it’s an exception; most Republicans who oppose a nominee will also oppose cloture on the nominee if there’s a vote.

Which is what it takes to make 60, and not a simple majority, the key number. Which, in turn, means that the Hagel nomination, like virtually everything else beginning in 2009, is being filibustered. This is what a filibuster looks like in 2013. The job for reporters is to let us know how much support the filibuster has, not whether it exists.

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