“In the history of the United States, 168 presidential nominees have been filibustered: 82 blocked under President Obama; 86 blocked under all other presidents”

— tweet by Senate Majority Leader Harry Reid (D-Nev.), Nov. 21, 2013

This tweet by the Senate majority leader echoed a line in his floor speech Thursday calling on the Senate to embrace the “nuclear option” and reduce the number of votes needed to end debate from 60 to 50. It was retweeted nearly 3,000 times.

“In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama Administration – during the last four and a half years,” Reid said. “These nominees deserve at least an up-or-down vote. But Republican filibusters deny them a fair vote and deny the President his team.”

In assessing the accuracy of these comments, some complicated definitional questions must be addressed. What is a filibuster and how do you count that? Does “block” mean the nominee does not get a floor vote (as Reid’s floor statement suggested) or merely that progress on the nomination is delayed?

We addressed some of these questions when we examined a television advertisement for the Democratic challenger to Senate Minority Leader Mitch McConnell (R-Ky.) Our negative (Three-Pinocchio) assessment of the ad, which was largely shared by other fact checkers, was disputed by some political scientists, such as Sarah Binder of the Brookings Institution, and also Reid’s office. So now let’s put Reid’s tweet to the test.

The Facts

The graphic cites as its source the Congressional Research Service, which turns out to be a CRS report on “cloture attempts at nominations” that we had cited in our earlier column, plus an update.

A filibuster generally refers to extended debate that delays a vote on a pending matter, while cloture is a device to end debate. Filibusters are used by opponents of a nominee or legislation, while cloture is filed by supporters.

(Note: The tweet’s graphic was revised—but not tweeted—after our colleagues at PolitiFact brought to the attention of Reid’s office that the reports describe the number of cloture attempts that were made, not the people who were nominated. That data is about 147 nominees. The word “blocked” disappeared in revised chart. )

The graphic assumes that every cloture motion can be counted as a filibuster. How kosher is this? Binder, in 2002, co-wrote a paper that concluded there was 94 percent correlation between cloture motions and documented filibusters between 1917 and 1996. But the CRS  report, using newer data, warns that “it would be erroneous, however, to treat this table as a list of filibusters on nominations.” So at the very least, Reid’s office ignored this admonition. (For the record, Binder says that “I think it is thoroughly fair to say that the increase in cloture motions and votes reflects a real increase in minority obstruction.”)

A larger question is what this graphic is supposed to document.  According to the CRS data, only 29 nominees (12 during the Obama presidency and 14 during the George W. Bush presidency) did not receive a final vote or had their nomination withdrawn.  In other words, eventually most of the nominees were approved, either by voice vote or with overwhelming support. Yet the graphic says the nominees were “blocked” and Reid in his floor speech said “these nominees deserve at least an up-or-down vote.”

Adam Jentleson, Reid’s communication director, says that “block” does not mean that a nomination is fully derailed, but that the minority used delaying tactics that ate up valuable floor time. Reid’s reference to a “fair vote” meant that the minority would not agree to simply proceed to a vote on the nomination without first requiring the Senate to go through the cumbersome cloture process. (Before the Senate began to split along partisan lines, setting up votes by unanimous consent was standard practice.)

“When Senator Reid files cloture it is because Republicans are blocking the nominee from receiving a fair up-or-down vote, and he has determined that the only way to get that vote is to file cloture, and waste the better part of a week,” Jentleson said. “Our whole point in the larger debate here is that it should not become accepted procedure that nominees — even consensus nominees — require almost a week of floor time before they can get a vote.”

Cloture can be time-consuming. After the motion is made, an intervening session day must pass and then up to 30 hours of debate can take place. So in theory almost an entire week can be spent on the issue.

Jentleson supplied another CRS report, not made public before, that documented the number of days it took the Senate in the 112th Congress to work its way through cloture votes on legislation. On average, the Senate spent four days per cloture motion on bills between the time the motion was filed and the time dispositive action was taken. Given that 43 bills were subject to cloture, in theory one could calculate that 190 days were spent burning the cloture clock, but the Senate also is able to conduct other business in this period. The report is embedded below.

We should note that, no matter who is in the White House, the opposing party often figures out ways to create delays in the Senate. Republicans controlled the Senate during much of Bill Clinton’s presidency, so nominees were easily derailed simply by refusing to hold a hearing. While Obama’s judicial nominees have often waited a long time for a vote after committee approval, we have earlier documented how George W. Bush’s nominees were slow-walked by Democrats before the committee hearing.  Bush’s appeals court nominees, in fact, took four times as long to get a hearing as Obama’s nominees.

Still, even The Washington Post sometimes gets confused about what this data means. The day after Reid succeeded in changing the rules, the newspaper ran a small front-page graphic that appears to mirror the data in Reid’s tweet, though it was more carefully worded.

That front-page graphic actually was derived from a much more detailed graphic that fully displayed all of the nuances in the data about cloture. But the larger graphic did not appear again in last week’s coverage, leaving readers in the dark about the various ways the cloture data can be assessed.

There is one further wrinkle to this story: While Reid’s office says delays in approving nominees are a key concern, the new Senate rules do not necessarily mean that nominations and legislation will move any quicker.

The minority can still refuse to grant unanimous consent to proceed to a vote, and so the majority leader may feel pressure to file for cloture, with all of its attendant delays. The only difference is that a vote on the nomination could proceed with just 50 votes, rather than 60.  So the supermajority filibuster may be gone, but the delays that so anger Democrats may continue.

With the new, lower threshold for ending debate, we’re not sure whether Senate denizens can count cloture votes as equivalent to filibusters without thoroughly confusing people.

“I wouldn’t count a simple majority cloture motion as a filibuster,” Binder said. “On the other elements of the cloture rule though, it’s hard to distinguish between following the rules and plain old obstruction. Take the 30 hours of post-cloture debate for appellate nominees, even under the new post-nuclear regime.  The leader sometimes asks for unanimous consent to waive the 30 hours of post-cloture debate.  Would that count as obstruction if the minority refuses to consent?  Tough call.  If the minority refused to consent just to slow down a confirmation vote to keep a judge off the bench, that seems like obstruction to me.  But of course it’s hard to discern senators’ motives from their actions.”

The CRS data show that of the 147 nominees that faced the cloture gauntlet, just 20 received between 50 and 59 votes and yet did not eventually get confirmed.  Fifteen of these people were nominated before Obama became president—and most were derailed when Democrats were in the minority.

“I would think that filibusters are a fact-checker’s nightmare,” Binder said. “You have counts of cloture motions but not counts of filibusters or obstructive acts.  It’s very hard to make sense of competing majority and minority arguments without solid evidence from both sides.  And most obstruction takes place behind closed doors, precluding equitable analysis of the two sides’ claims.”

The Pinocchio Test

The Democratic campaign ad earned Three Pinocchios because it attributed actions to McConnell that were largely the results of parliamentary tactics used by Reid. (Reid’s office says this was in response to McConnell, but as we showed finding a direct connection in every case was debatable.)

This graphic is not as objectionable, but we still think it is confusing, if not misleading, to people not versed in congressional minutiae.  People can disagree on the definition of “block,” especially in a congressional context, but under our reasonable-person test, it suggests a final vote did not take place. The revised graphic, without the word “block,” begins to sidestep such concerns.

But we especially find it hard to get past CRS’s admonition that the data in its report should not be used to calculate the number of filibusters, as Reid’s office has done. If the concern is really about delays and obstruction, then a more transparent and easily understood metric should be developed. We lean slightly toward Two Pinocchios, given that the source of the report warns against the very math that is used in the graphic.

Two Pinocchios

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