The world’s leading filibuster expert on what happened today and what to expect next.

November 21, 2013

filibustering
Gregory Koger is an associate professor of political science at the University of Miami. He has written numerous articles about the filibuster, and literally wrote the book on the subject. We talked on the phone Thursday afternoon; a lightly edited transcript follows.

So, uh, big day for you huh?

[Laughs] Once upon a time, even my fellow Congress scholars said, "That's kind of a stupid topic, who cares about how a simple majority could hypothetically change the rules of the Senate?"

What did you make of the specific way in which the filibuster for nominees was abolished?

In a paper I'm writing with Sergio Campos, we lay out five illustrative options for how a majority could work its will. It's not exhaustive, because there are dozens of ways you could do this. What the Democrats did today was our option four. You bring up something, have a cloture vote, and after you lose say, "It takes a simple majority to win this one." We're not the only people who had this idea but we did anticipate this possibility.

The change was limited to executive nominations and non-Supreme Court judicial nominations. How did that limitation come about? Who decided upon it?

It was in the nature of the objection that Harry Reid raised in the first place. They had the floor debate on the nominee, and the cloture vote, and then the chair's decision is announced that cloture was not invoked, and Harry Reid raises his objection to the ruling of the chair and says he objects because it only takes a simple majority to invoke cloture on all executive nominations, and all judicial nominations except the Supreme Court. So the "rule" is articulated by the objection he's raising, and the only reason that it [SCOTUS nominations] was carved out is that Harry Reid said so.

So there's nothing stopping someone in the future from raising an objection and saying cloture can be invoked on all judicial nominations, including the Supreme Court, in the future.

Or doing that for legislation.

Ezra's conclusion was that this means that the next time a big piece of legislation faces a filibuster, the whole thing is gone. Do you agree?

My point all along has been that a simple majority can achieve this sort of reform whenever you want to.

The question is whether a majority would stick together on the floor to further restrict obstruction. I would guess that some Democratic senators would not vote the same way on restricting filibusters against legislation. I can imagine, actually, a filibuster against a Supreme Court nominee being broken this way. But I'd note that, in the past, it hasn't been necessary. Clarence Thomas was confirmed by a 52 to 48 vote, which means Democrats could have filibustered him but chose not to. If there was a similarly controversial nominee in the future, I would guess he or she might also pass with 50 votes.

A lot of the frustration you hear from Democrats on the Hill isn't about filibusters per se but about the use of procedure as a stalling tactic: you filibuster both the underlying nomination and the motion to proceed to the nomination, you wait a day or two for a cloture motion to "ripen," etc. Does this change that at all?

Not directly. It is possible that Democrats frustrated enough to vote for reform today might also be frustrated enough to adopt further reforms without completely eliminating the right to filibuster.

But it's hard to make fine-tuned reforms. If you're coming up with procedural arguments, it's easier to come up with arguments to completely get rid of filibustering than to come up with parliamentary justifications for tweaking the rules to, say, shorten the ripening period. It's not easy to come up with convincing rationales for small tweaks, though honestly, a simple majority can do it if they want to.

Well, Reid didn't seem to present a principled rationale for limiting the change to non-SCOTUS nominees, so that might not be an impediment.

Right, as he was doing it, at least, there wasn't any of that chin music. It was, "Here's what we want to do and we're going to vote on it."

I suppose you could think of one if you had to, though.

Indeed. The case for executive nominees would be, "You can't elect a president and then keep him from having his own team in place." For judicial nominees, you can't make exactly the same argument but can use roughly the same reason.

Anything else notable about how this went down?

One minor note is that the Republicans didn't seem to fight very hard against it. If you go back to 1975, when there was an effort to rule the Senate was not a continuing body and change the rules by a simple majority, there was one senator from Alabama, James Allen, who fought the reformers tooth and nail, raising all kinds of complex procedural obstacles to it. Today's fight was over in an hour and a half, total. McConnell called for a revote, but there was no attempt to drag it out, which was interesting.

If nothing else, today seems to have killed the idea that you can only change the rules by majority vote on day one.

Personally, I appreciate that. I thought it was a needless straightjacket. It was an excuse for other senators not to think about this for the rest of the Congress.

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