Wonkbook: 10 facts that explain the filibuster fight

July 16, 2013

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(Photo by J. Scott Applewhite/AP)
(Photo by J. Scott Applewhite/AP)

1) Before Obama, 20 executive branch nominees were filibustered. Under Obama, 16 have been filibustered. This is a statistic Reid's office likes to use. If current trends continue, they note, it's entirely possible Obama could end up seeing more of his executive-branch nominees filibustered than every other president in history combined. Reid says this shows McConnell broke the bargain he struck with Reid at the beginning of this session of Congress, in which Reid promised not to touch the filibuster if McConnell promised to treat nominations in line with the Senate's historic norms.

2) Most nominees -- even long-delayed ones -- eventually pass, and they often do so with overwhelming support. This is a point McConnell likes to make. Senate Republicans often vote in large numbers to confirm Obama's top nominees. On the Senate floor last week, McConnell ran through a partial list: "The energy secretary, 97-0. Secretary of the Interior, 87-11. The Secretary of the Treasury, 71-26. The Secretary of State, 94-3, just a few days after the Senate got his nomination. The Secretary of Commerce, 97-1. The Secretary of Transportation, 100-0. The Director of the Office of Management and Budget, 96-0. The administrator of the Centers for Medicare and Medicaid Services 91-7. The Chair of the S.E.C., on a voice vote -- in other words, unanimously."

To Reid and the Democrats, though, this just shows how absurd the lengthy delays, frequent filibusters, and unprecedented questioning really are. "That’s the whole point," Reid said in his speech at CAP. "They don’t have anything. There’s nothing wrong with these people. There’s nothing wrong with their qualifications. They" -- meaning the Republicans -- "simply want to stall what goes on."

3) Majority Leader Lyndon Johnson faced one filibuster. Majority Leader Harry Reid has faced more than 400. The best way we have to count filibusters is to count the number of times the majority invokes the "cloture rule" that's used to break them. You can see the numbers here, and they're startling. Johnson faced one filibuster during his time as majority leader. Reid has faced hundreds. Though it's not as if Democrats are blameless here. Majority Leader Bill Frist faced more than 100 filibusters during his four-year tenure.

But though Reid bandies this statistic around, he's not, by and large, looking to change it. His proposal would only eliminate filibusters on executive-branch nominees. It wouldn't touch filibusters on legislation, or judicial nominees. Reid has previously defended the 60-vote Senate, and at CAP, he repeated himself: "I'm not anxious to change that," he said. When asked whether Republicans wouldn't change it if he goes ahead and eliminates the filibuster against executive-branch nominees, Reid warned "they would rue the day they did it."

4) Republicans aren't just trying to block nominees. They're trying to nullify or change agencies. The fights that have Democrats most exercised right now aren't over normal nominees. They're over the National Labor Relations Board, where the GOP has refused to confirm enough members to create a quorum, and which thus can't legally carry out its normal duties; and the Consumer Financial Protection Bureau, where the GOP has said they're blocking the nominee not out of any particular concern over his qualifications, but because they oppose the agency as currently constructed and want to see it changed. Democrats consider this a dangerous new tactic that needs to be quickly shut down.

5) There are a lot of ways to slow down the Senate beyond the filibuster. McConnell isn't powerless here. The Senate runs on norms more than it runs on rules. That's because the rules of the Senate are a mess. As a general principle, you can't do much of anything unless most everyone agrees on doing it -- that's why almost all business runs through so-called "unanimous consent agreements," in which the two sides agree to ad hoc rules that will govern any issue. If Reid blows up the filibuster McConnell will likely blow up the Senate, using his many, many points of leverage to grind business to a halt. Reid's response is that business has pretty much already ground to a halt. But "pretty much" and "completely" are very different things.

6) Confidence in Congress is down to 10 percent. That's the lowest on record, according to Gallup. And it's given Democrats reason to believe voters want Congress shaken up. Every time McConnell accuses Reid of destroying the Senate, Reid gleefully accuses McConnell of supporting the wildly unpopular status quo.

7) The top problem Americans have with Congress is gridlock. 59 percent of Americans say the main problem with Congress is either partisan gridlock or Congress being unable to get anything done. That's given Democrats reason to believe voters will accept changes that reduce gridlock, even if those changes also reduce minority rights.

8) Republicans might well capture the Senate in 2014. Nate Silver released some early, early, early Senate rankings on Monday, and he thinks that control of the Senate is a toss-up in the 2014 election -- and one that just got a bit better for Republicans now that Montana Governor Brian Schweitzer says he won't run to replace Max Baucus. So McConnell knows that if Reid begins to chip away at the filibuster McConnell might be able to have it both ways: He can blame Reid for destroying the Senate but reap the benefits of running a streamlined process.

9) Democrats won't capture the House any time soon. Due to the magic of redistricting and geographic apportionment (where Democrats cluster into urban congressional districts and Republicans spread out into rural districts) the GOP has a significant advantage, and for the next few elections, likely durable advantage in the House. That means that Obama's legislative agenda is largely blocked, and even a filibuster-free Senate wouldn't be able to clear the way to passing legislation of consequence. For Democrats, that puts more emphasis on executive-branch nominees that help Obama get things done through the regulatory state. But it's also made the stakes a bit lower, and some Democrats wonder why it's worth having this fight now, when so little is likely to get done in its aftermath.

10) There is hypocrisy on both sides. In 2005, when Republicans were trying to eliminate the filibuster on judicial nominees, McConnell was a ring leader in the effort. Though he says today that changing the filibuster rules with 51 votes would destroy the Senate, he said then that "This is not the first time a minority of Senators has upset a Senate tradition or practice, and the current Senate majority intends to do what the majority in the Senate has often done–use its constitutional authority under article I, section 5, to reform Senate procedure by a simple majority vote."

Reid replied, "for people to suggest that you can break the rules to change the rules is un-American."

So there's enough hypocrisy to go around on this issue. That's because the two parties tend to look at these sorts of rules changes in terms of how they'll affect their power right now. The rest of us, however, should ask whether these changes make sense for the Senate no matter who's in charge. Then, the question is simple: Would you prefer to see the trend of more and more obstruction of executive-branch nominees continue -- as it will under both parties without changes? Or would you prefer to see the president able to staff the executive branch more smoothly?

Wonkbook's Number of the Day: 98/100. That's the share of senators who attended last night's filibuster showdown meeting.

Wonkblog's Graphs of the Day: The history of the filibuster, in one graph.

Wonkbook's Top 5 Stories: 1) filibuster reform; 2) Bernanke testimony tomorrow; 3) the unimportant employer mandate; 4) a Snowden's chance; and 5) the lessons from Trayvon Martin.

1) Top story: Going nuclear?

Where we stand on the filibuster right now. "Senators emerged from a three-and a-half-hour meeting in the Old Senate Chamber saying they were confident that an agreement could be reached Tuesday to defuse the tense partisan standoff, though no deal had been struck in the closed session that went well into the night. Democratic and Republican leaders promised to continue negotiating, but Mr. Reid, the majority leader, said the first test vote was still scheduled for Tuesday morning. “There’s no deal, but there’s a much better understanding,” said Senator John D. Rockefeller IV, Democrat of West Virginia." Jonathan Weisman and Ashley Parker in The New York Times.

On the Senate's meeting. "The Senate made an eleventh-hour bid Monday night to avert an unprecedented maneuver to change the chamber’s rules governing presidential appointees, with nearly all 100 senators huddled in a rare bipartisan, closed-door caucus. Before that critical meeting, Republicans, Democrats and White House officials engaged in a flurry of talks over President Obama’s selections to head low-profile but influential agencies, including a meeting Monday afternoon between the key protagonists in this melodrama, Majority Leader Harry M. Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.)." Paul Kane and Ed O'Keefe in The Washington Post.

Primary source: Harry Reid’s speech on how he’ll ‘save the Senate from becoming obsolete.’ The Washington Post.

Is Sen. Reid just bluffing? "This time, Reid insists he is serious, and his vote threat is not a negotiating tactic...The unusual meeting offers the possibility of a deus ex machina solution to the current standoff. But Reid insists that he is past seeking a negotiated solution and that unless all seven of the proffered nominations get a vote, he will proceed with the rules change" Molly Ball in The Atlantic.

@SenatorReid: Unprecedented obstruction in the Senate: LBJ faced 1 filibuster as majority leader, I've had to deal with 420. #EndGridlock

...Or might filibuster reform actually happen this time? "Reid, for now, is only concerned with making it easier to confirm non-lifetime appointees to the executive branch. He counts seven jobs in limbo, including the top roles at the EPA, Department of Labor, and (somewhat prematurely) the Department of Homeland Security. The four stuck jobs that Democrats care about the most are the directorship of the Consumer Financial Protection Bureau and three Democratic seats on the National Labor Relations Board. It’s the NLRB holdup that’s giving Democrats their new urgency, and Reid his new pique." David Weigel in Slate.

Explainer: Who are the nominees at the center of the Senate filibuster fightEd O'Keefe in The Washington Post.

Vacancies and partisan fighting put labor-relations agency in legal limbo. "At the heart of the rancorous showdown between Senate Republicans and Democrats over President Obama’s blocked political appointments is an unglamorous federal agency that polices labor practices and that has, for Republicans, become a reviled symbol of the Obama administration’s bureaucratic overreach. The agency, the National Labor Relations Board, has functioned without a full slate of five members, and with its existing appointees in legal limbo, for Mr. Obama’s entire presidency." Mark Landler and Steven Greenhouse in The New York Times.

@TimothyNoah1: No bipartisan deal reached on filibuster. I thought Reid was bluffing, but I'd love to be proven wrong tomorrow when nominees are voted on.

...And business groups watch carefully. "The ban on filibusters that Senate Majority Leader Harry Reid is threatening to adopt could clear the way for Democrats to confirm several people who would run influential labor agencies, and that's worrying the business community...Business trade groups and employer lawyers say the combination would reactivate a vigorous regulatory agenda that would limit employers' rights while expanding those of unions and employees." Melanie Trottman in The Wall Street Journal.

Watch: The 2 videos you need to watch with last night's closed-door Senate meetingChris Cillizza in The Washington Post.

SEIB: Senate on path to meltdown. "This fight, though, is merely a proxy for a much broader and historically troublesome rupture of the Senate along party lines. The breach has been long developing, so it's easy to forget what a radical departure it represents for a body that once prided itself on being above the raw passions of the day...So the broader question is: What has happened to the U.S. Senate? A lot of things, but in a nutshell, this: The Senate, which was designed by the framers of the Constitution to be different from the House, has instead become ever more like the House in recent years, polarized and riven by passions and partisan fractures." Gerald F. Seib in The Wall Street Journal.

@yeselon: Cannot stress enough how important filibuster fight is--not about particular nominees, but re: restraining GOP pervasive violation of norms.

DOVE: Beware the 'nuclear option.' "This cooling of legislation is not always easy to watch...The aim was always the same: to encourage debate but never to permit simple majority rule of the Senate. Opponents argue that Rule 22 fosters an inefficient and cumbersome process. Less commonly noted is the fact that such brakes on the system are exactly what was intended and have served the country well." Robert Dove in The Wall Street Journal.

Music recommendations interlude: Travis, "Driftwood," 2006.

Top op-eds

PONNURU: Scrap delusional immigration bill and start over. "The status quo, flawed as it is, is preferable to passing this bill. What would be better, though, would be for Congress to pass an alternative. Like the current bill, an alternative would include provisions to enforce the laws against illegal immigration. But it could differ in refusing to simply throw money at the border, and it could take the problem of people who come to the country legally and then overstay their visas more seriously." Ramesh Ponnuru in Bloomberg.

KINSLEY: The Republican rot. "The net effect of the farm bill, as it stands now in the House, is to take money away from a successful program for making sure that no one starves, and giving it to a variety of programs whose goal is to raise the price of food, for the poor and everyone else. Even if you only care about how things look, this does not look good, it seems to me." Michael Kinsley in The New Republic.

BROOKS: Men on the threshold. "[T]here has been some ineffable shift in the definition of dignity. Many men were raised with a certain image of male dignity, which emphasized autonomy, reticence, ruggedness, invulnerability and the competitive virtues. Now, thanks to a communications economy, they find themselves in a world that values expressiveness, interpersonal ease, vulnerability and the cooperative virtues." David Brooks in The New York Times.

Environmental healing interlude: Charles River opens for first public swim since the 1950s.

2) Bernanke testimony tomorrow 

Bernanke faces grilling over bond buying. "Ben Bernanke’s power over markets will be put to the test this week when he gives what is likely to be his last monetary policy report to US Congress. The Fed chairman testifies before the House Financial Services committee at 10am on Wednesday, and repeats the performance in front of the Senate Banking committee the next day, with markets still jittery about the central bank’s plan to gradually slow its $85bn-a-month in asset purchases...The most sensitive thing he could do is give a more detailed hint about when the Fed will start to taper its asset purchases. Many signs point to September, and that is now at the centre of market expectations." Robin Harding in The Financial Times.

Federal Reserve delays debate over stimulus exit strategy, eyeing investor anxiety. "The exit strategy approved two years ago called for the Fed to sell its portfolio of mortgage-backed securities over three to five years, but minutes of the Fed’s policy-setting meeting in June show that most officials now believe the central bank should hold on to that debt. Part of the reason is that the portfolio has grown so large — totaling more than $1 trillion — that shedding it in such a short time frame could disrupt the market. Proponents also argue that holding the debt delays shrinking the Fed’s balance sheet only by about a year." Ylan Q. Mui in The Washington Post.

How to fearmonger about the Fed in two easy steps. "Don't be worried if this all seems confusing. It is. It's all about inflation, or maybe not. Or bubbles. Or uncertainty. It's hard to follow the argument -- but not the conclusion. That's always tighter money. But there is some good news: anybody can inflation derp like a pro if they follow these two simple steps." Matthew O'Brien in The Atlantic. 

Consumers dial back spending. "Consumers moderated their spending in June, buying more cars but mostly cutting back on other nonessentials, the latest sign the economy is trudging through a weak patch in the middle of the year. Retail sales grew a softer-than-expected 0.4% last month, the government said Monday, as shoppers dialed back spending on restaurant meals and gardening equipment amid higher taxes and weak growth in wages. If purchases of cars and gasoline are excluded—these purchases tend to be volatile—spending actually dropped 0.1%, the first decline in a year" Neil Shah and Suzanne Kapner in The Wall Street Journal.

Reading list: Books on the financial crisis you should tacklePhillip Swagel in The New York Times. 

Are hedge funds really for suckers? Yeah, kinda. "Will the affluent doctors and lawyers and executives around the country with a couple million dollars in savings, who are newly pitched the chance to invest in hedge funds, believe that they are finally getting entrée into the exorbitant returns previously enjoyed by  the ultra-rich? Or will they read things like the BusinessWeek cover and understand that they’re really signing up to support a money manager’s luxury lifestyle while earning returns that, on average, will be a bit below those if they invested in plain vanilla stock and bond funds." Neil Irwin in The Washington Post.

Prosecution and persecution in the SEC's suit against Fabrice Tourre. "The Securities and Exchange Commission on Monday kicked off its high-profile court case against Fabrice Tourre, the Goldman Sachs trader known as “Fabulous Fab” who has come to symbolize Wall Street’s reckless behavior leading up to the economic meltdown...The civil case also could be the SEC’s last big shot at holding Wall Street and its executives accountable for their role in sinking the global economy, legal experts said...The SEC accused Tourre and Goldman of creating the mortgage product at the request of tycoon John Paulson and his hedge fund, which was looking for a way to bet on a drop in the housing market. But investors were not told that the hedge fund helped pick the securities that went into the product, known as a collateralized debt obligation, the agency said." Dina ElBoghdady in The Washington Post.

And you thought you had seen it all interlude: Zoo portraits.

3) Employer mandate delay doesn't matter, study finds

Study: Mandate delay won't hurt Obamacare's bottom line. "The one-year delay in ObamaCare's employer mandate won't have much effect on the law's costs or the number of people it covers, according to a new study from the Urban Institute. The study found that the one-year delay will not result in significantly more people seeking subsidized private coverage through newly created insurance exchanges — a possibility that received immediate attention once the administration announced that it was delaying the employer mandate." Sam Baker in The Hill.

Primary source: "It's No Contest: The ACA's Employer Mandate Has Far Less Effect on Coverage and Costs Than the Individual Mandate" by Linda J. Blumberg, John Holahan, Matthew Buettgens.

House panel to begin marking up 'doc fix' bill. "The House Energy and Commerce Committee will begin marking up a permanent "doc fix" bill next week, Chairman Fred Upton (R-Mich.) said Monday. In an interview with a local news channel in Kalamazoo, Mich., Upton said his committee would mark up a bill on July 22 to permanently replace Medicare's payment system for doctors." Sam Baker in The Hill.

Q&A: Readers have lots of Obamacare questions. We have answersSarah Kliff in The Washington Post.

From the department of lowered Obamacare expectations: This video. "Health and Human Services tweeted some exciting news this morning: the health-care law is on schedule! This isn’t the most rah-rah of political messages; on-time doesn’t necessarily suggest hope and change. It’s not a video that would even get produced if everyone expected that the law would roll out on time. It doesn’t promise perfection on Day One either. Instead, the bar is a relatively low one for the administration to clear: That come Oct. 1, there will be a marketplace where consumers can purchase health insurance coverage." Sarah Kliff in The Washington Post.

Insert overuse Yakov Smirnoff joke here interlude: A day in the life of Russian billionaire Sergey Veremeenko.

4) A Snowden's chance in Moscow?

Snowden’s surveillance leaks open way for challenges to programs’ constitutionality. "The recent disclosure of U.S. surveillance methods is providing opponents of classified programs with new openings to challenge their constitutionality, according to civil libertarians and some legal experts. At least five cases have been filed in federal courts since the government’s widespread collection of telephone and Internet records was revealed last month. The lawsuits primarily target a program that scoops up the telephone records of millions of Americans from U.S. telecommunications companies." Jerry Markon in The Washington Post.

Putin wants Snowden to leave Russia. "President Vladimir Putin said he hopes Edward Snowden, the U.S. National Security Agency leaker, will leave Russia as soon as possible and reiterated that he doesn't want the situation to damage relations with the White House...The comments Monday highlighted Mr. Putin's delicate maneuvering. Though Mr. Snowden's arrival has presented an opportunity for the Russian president to burnish his American-defiant reputation at home and abroad, Mr. Putin isn't seeking a major blowup in ties with Washington. Such a collapse in relations would imperil a high-profile September meeting that Mr. Putin has planned with President Barack Obama in Russia—an event the Kremlin doesn't want to derail." Paul Sonne in The Wall Street Journal.

Edward Snowden nominated for Nobel Peace Prize. "A Swedish sociology professor has nominated Edward Snowden for the Nobel Peace Prize, saying that awarding the former NSA employee would correct Nobel Committee’s mistake in giving the award to President Barack Obama in 2009. According to a translation of the letter published by the Daily Mail and RT.com, Umeå University professor Stefan Svallfors wrote the committee that Snowden has made the world safer in releasing information about United States surveillance." Tal Kopan in Politico.

If more parents showed their kids this, we'd have a lot more scientists interlude: NASA's "Astronomy Picture of the Day."

5) The lessons from Trayvon Martin 

Huge racial gap among Zimmerman trial followers. "Overall, 56 percent of African Americans say they were following the trial “very closely,” while 20 percent of whites said the same. That racial gap ranks among the highest when it comes to major racial incidents in America over the last two-plus decades." Aaron Blake in The Washington Post.

How the media might have helped George Zimmerman go free. "There is extensive research literature on what social scientists call “pretrial publicity” or PTP...[P]ublicity leaves high-profile defendants worse off. But more recent research has looked at “positive PTP,” or pro-defendant coverage, which has a similar but opposite impact...[A]lternating exposure to positive and negative coverage had the net effect of making study participants more likely to favor the defendant. “The point-counterpoint presentation resulted in a pro-defendant (or pro-acquittal) bias,” the authors conclude." Dylan Matthews in The Washington Post.

SALETAN: You are not Trayvon Martin. "Everywhere you look, people feel vindicated in their bitter assumptions. They want action. But that’s how Martin ended up dead. It’s how Zimmerman ended up with a bulletproof vest he might have to wear for the rest of his life. It’s how activists and the media embarrassed themselves with bogus reports. The problem at the core of this case wasn’t race or guns. The problem was assumption, misperception, and overreaction. And that cycle hasn’t ended with the verdict. It has escalated." William Saletan in Slate.

COATES: Martin and the irony of American justice. "It is painful to say this: Trayvon Martin is not a miscarriage of American justice, but American justice itself. This is not our system malfunctioning. It is our system working as intended. To expect our juries, our schools, our police to single-handedly correct for this, is to look at the final play in the final minute of the final quarter and wonder why we couldn't come back from twenty-four down." Ta-Nehisi Coates in The Atlantic.

SUNSTEIN: Reasonable doubt is central to Zimmerman verdict. "Reasonable doubt is far more difficult to meet than other legal standards, including “preponderance of the evidence” (used for most civil trials), “clear and convincing evidence” (used for deportation proceedings) and “substantial evidence” (used for administrative agency decisions). To be sure, any doubt must be “reasonable”; the law doesn’t require absolute certainty. But a good defense lawyer is often able to obtain an acquittal even if most jurors essentially agree with the prosecution’s account of the facts." Cass R. Sunstein in Bloomberg.

CAPEHART: Trayvon Martin and the stolen youth of black children. "What this means is that black adolescents cannot afford to be normal American teenagers. They cannot experiment with pot. They cannot fight in any way ever, even if it means protecting themselves from a stranger. They cannot take sophomoric pictures with middle fingers, bare chests or in silly gear. They can’t have improper conversations on social media. They can’t wear anything society views as menacing. And growing up, they can never ever make bad choices or mistakes — the types that teach life lessons, foster humility and build character." Jonathan Capehart in The Washington Post.

COBB: What hasn't changed in post-racial America. "A cursory glance at the history of race in the U.S. shows that the moments of great advancement are accompanied by terrible setbacks, a social equivalent of the boom-bust cycle in economics. In the spring of 2007, as Obama’s campaign showed the first fragile possibilities of success, enthusiasm among blacks evolved in tandem with a seldom-voiced understanding that his election wouldn’t resolve the question of race, only complicate it...[T]he conundrum that confronts millions of young black men: the dual fears of crime and of those in society who can only see them as the embodiment of it." Jelani Cobb in Bloomberg.

Reading material interlude: The best sentences Wonkblog read today.

Wonkblog Roundup

Paul Krugman thinks low interest rates are behind the boom in paper currency. Not so fastZachary A. Goldfarb.

Solar power has gotten so good we can use it to power airplanesTimothy B. Lee.

The Federal Reserve helped fund the D.C. Metro system. Wait, whatYlan Q. Mui.

Readers have lots of Obamacare questions. We have answersSarah Kliff.

From the department of lowered Obamacare expectations: This videoSarah Kliff.

Obamacare contractor under investigation in BritainSarah Kliff.

READ: Harry Reid’s speech on how he’ll ‘save the Senate from becoming obsolete’. Lydia DePillis.

How John Boehner became Bob Dole, and Republicans moved far to the rightEzra Klein.

Are hedge funds really for suckers? Yeah, kindaNeil Irwin.

These maps show the best places to put solar and wind power. (It’s not where you think.) Brad Plumer.

How the media might have helped George Zimmerman go freeDylan Matthews.

Why are universities trying to limit access to breast cancer testsTimothy B. Lee.

Et Cetera

Opponents of gay marriage just lost another round in courtThe Associated Press.

Fund overwhelmed by aid requests from furloughed federal workersMelissa Dawkins in Federal News Radio.

Senate control in 2014 increasingly looks like tossupNate Silver in The New York Times.

Americans favor Democrats on immigrationAaron Blake in The Washington Post.

Climate change showdown takes shapeBen German in The Hill.

Got tips, additions, or comments? E-mail me.

Wonkbook is produced with help from Michelle Williams.

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