February 27, 2013
Chuck Hagel testifies on Capitol Hill in Washington before the Senate Armed Services Committee. (J. Scott Applewhite/Associated Press)
Chuck Hagel testifies on Capitol Hill in Washington before the Senate Armed Services Committee. (J. Scott Applewhite/Associated Press)

The fight over Chuck Hagel teaches one solid lesson: Everyone would be better off with simple majority cloture for executive branch nominations. Everyone.

Of course, it starts with the majority party, who obviously would be better off, as a party, with majority confirmation (if they’re the out party, that’s still true, although not nearly as big a deal).

For the handful of minority-party supporters of Hagel’s nomination, it’s hard to see how the 60 standard helps.

What about the moderate Republican Hagel opponents? That is, the group who voted against him for confirmation, but were not so strongly against him that they stuck with the filibuster. That’s a large group; over a dozen Republicans wound up voting for cloture but against Hagel. Surely, they would be better off with simple-majority cloture. Then, if there was a cloture vote, they could have opposed cloture (and thus avoided the scorn of “true” conservatives who wanted them to do everything possible to defeat Hagel) without undermining the principle that they presumably support — that presidents should generally get the people they want unless there are extraordinary circumstances.

Now for the tough one: strong Hagel opponents. Well, in the event, they would be no worse off; after all, Hagel eventually prevailed. Still, we’ll probably soon see a cabinet nomination defeated by filibuster. My argument here isn’t so much that the Hagel opponents lost anyway; it’s that they probably don’t care that they lost. It’s highly unlikely, in my view, that Sens. Ted Cruz and Jim Inhofe really believe that Hagel will be a significantly worse secretary of defense than the various potential substitutes President Obama might select. And I’d say that even if I was convinced that they believed their own rhetoric (which I doubt) about Hagel’s alleged anti-Israel, pro-Iran views, Cruz no doubt believes the same things about Obama himself and would believe them about any nominee, even if Hagel had the courtesy to provide some nice supporting quotes.

But wait — there’s more. One of the notable pieces of the Hagel fight was Sen. Harry Reid’s decision not to honor holds placed by Republican senators who wanted to use the nomination to extract information from the administration. Reid was quite right to ignore those holds and, moreover, move straight to the first cloture vote. After all, the whole fight took place in a context in which the minority party really could, if it united against cloture, defeat the nomination. But with simple majority cloture, single senators would retain the ability to make trouble (by forcing a cloture vote, which slows down the Senate) and thus retain leverage — while the majority leader would probably be more willing to play along with holds since the nomination itself would not be endangered. The majority would also probably be more willing to allow extended (actual) debate time, if requested, since they would have the power to shut things down. Overall, then, simple majority cloture should give individual senators and small groups of senators more, not less, influence.

Now, any reform should also take into account different Senate vote counts, not only the current one. But if anything, the current 55/45 split is the one where the minority would care the most about extra protection; if the majority gets closer to 60, the odds of defeating executive branch nominees gets lower, while if the majority gets smaller or if the president’s party is in the minority, then 60-vote cloture becomes less relevant because the out-party can defeat nominees with a simple-majority vote.

Now, granted, the vote to switch to simple-majority cloture would be a problem for minority party senators even if they recognized they would be better off with it — for the exact same reason that “allowing” Hagel to be confirmed by voting for cloture was a problem. And the same logic doesn’t apply at all to judicial nominations — the senators who opposed Justices Elena Kagan, Samuel Alito and various Circuit Court nominees really did want to defeat them, and so the 60-vote standard is something very much in the interest of Senate minorities.

On executive branch nominees, however? Simple majority cloture is the best way to ensure a strong and functioning Senate. For all senators, from both parties.