If it looks like a duck, swims like a duck, and quacks like a duck….Thoughts on the Hagel filibuster

by Sarah Binder on February 14, 2013 · 7 comments

in Senate procedure

I’m late to the conversation about whether Republican efforts to insist on sixty votes for cloture on Chuck Hagel’s nomination as Secretary of Defense constitute a filibuster.  Bernstein’s earlier piece (“This is what a filibuster looks like“) and Fallows’ recent contribution provide good, nuanced accounts of why Republican tactics amount to a filibuster, even if some GOP senators insist otherwise.   In short, the duck test applies:  If it looks like a duck, swims like a duck and quacks like a duck, then …. it’s a filibuster!

Still, I think there’s more to be said about the politics and implications of the Hagel nomination.  A few brief thoughts:

First, let’s put to rest the debate about whether insisting on sixty votes to cut off debate on a nomination is a filibuster or, at a minimum, a threatened filibuster.  It is.  Even if both parties have moved over the past decade(s) to more regularly insist on sixty votes to secure passage of major (and often minor) legislative measures and confirmation of Courts of Appeals nominees, we shouldn’t be fooled by the institutionalization—and the apparent normalization—of the 60-vote Senate.  Refusing to consent to a majority’s effort to take a vote means (by definition) that a minority of the Senate has flexed its parliamentary muscles to block Senate action.  I think it’s fair to characterize such behavior as evidence of at least a threatened filibuster—even if senators insist that they are holding up a nomination only until their informational demands are met.

Second, there’s been a bit of confusion in the reporting about whether filibusters of Cabinet appointees are unprecedented.  There appears to have been no successful filibusters of Cabinet appointees, even if there have been at least two unsuccessful filibusters against such nominees.  (On two occasions, Cabinet appointees faced cloture votes when minority party senators placed holds on their nominations—William Verity in 1987 and Kempthorne in 2006.  An EPA appointee has also faced cloture, but EPA is not technically cabinet-level, even if it is now Cabinet-status).  Of course, there have been other Cabinet nominees who have withdrawn; presumably they withdrew, though, because they lacked even majority support for confirmation.  Hagel’s situation will be unprecedented only if the filibuster succeeds in keeping him from securing a confirmation vote.

Third, using cloture votes as an indicator of a filibuster underestimates the Senate’s seeping super-majoritarianism.  (Seeping super-majoritarianism?! Egads.)  At least two other recent Cabinet nominations have been subjected to 60-vote requirements: Kathleen Sebelius in 2009 (HHS) and John Bryson (Commerce) in 2011.  Both nominees faced threatened filibusters by Republican senators, preventing majority leader  Reid from securing the chamber’s consent to schedule a confirmation vote—until Reid agreed to require sixty votes for confirmation.  The Bryson unanimous consent agreement (UCA) appears on the right, an agreement that circumvented the need for cloture.   Embedding a 60-vote requirement in a UCA counts as evidence of an attempted filibuster, albeit an unsuccessful one.  After all, other Obama nominees (such as Tim Geithner) were confirmed after Reid negotiated UCAs that required only 51 votes for confirmation, an agreement secured because no Republicans were threatening to filibuster.

Finally, what are the implications for the Hagel nomination?  If Republicans were insisting on sixty votes on Senator Cornyn’s grounds that “There is a 60-vote threshold for every nomination,” then I bet Reid would have been able to negotiate a UCA similar to Sebelius’s and Bryson’s.  But Hagel’s opponents see the time delay imposed by cloture as instrumental to their efforts to sow colleagues’ doubts about whether Hagel can be confirmed (or at a minimum to turn Friday’s this afternoon’s cloture vote into a party stand to make their point about Benghazi).  Of course, it’s possible that the time delay will work to Democrats’ benefit if they can make headlines that GOP obstruction puts national security at risk.  (Maybe Leon Panetta should jet out have jetted to his walnut farm to make the point before the cloture vote.)  Whatever the outcome, the Hagel case reminds us that little of the Senate’s business is protected from the intense ideological and partisan polarization that permeates the chamber and is amplified by the chamber’s lax rules of debate and senators’ lack of restraint.  Filibustering of controversial Cabinet nominees seems to be on the road to normalization—even if Hagel is ultimately confirmed.

{ 7 comments }

Andrew Straticzuk February 14, 2013 at 10:33 pm

how about ‘creeping super=majoritarianism’

Jeffrey Ellis February 15, 2013 at 1:55 pm

How about calling it for what it is — the tyranny of minority rule.

ropelight February 16, 2013 at 12:34 pm

So, if eleven jurors voted for the electric chair and a minority of only one held out for an acquittal, then according to your politically convenient nostrum, the perp should fry rather than let the accused walk on a tyrannical technicality?

Of course not.

Let’s call it for what it actually is – a long established Senate rule designed to protect the rights of a substantial minority against the tyranny of thin majority rule, which has served both our major political parties well as their electoral fortunes have waxed and wained over the years, and it is a rule which no one with the brains of a crab apple would change if our represenative government is long to endure.

Frankly Curious February 15, 2013 at 1:58 am

I don’t understand the modern obsession (especially among conservatives) about the names of things. Somehow if we don’t call water boarding “torture” then it is okay? I don’t think so. The behavior of the Senate Republicans is unacceptable. I think we fall into a trap when we start debating the names for things. As you’ve shown here, this behavior is breaking for Senate norms. That is the issue. Even if the Republicans can argue convincingly that it isn’t a filibuster, it is still wrong.

Bob Cherry February 16, 2013 at 3:37 pm

Wrong? What else is available for the minority? It seems that, of late, the party of the executive has renounced all due diligence to the Constitution.
“This is the person the President wants in his cabinet. Who are we to question this nomination?”
Minority: Mr. Jones, did you beat your wife?
Majority: Mr. Jones, questions from the other side are truly unfair. Its my understanding, and that of my colleagues, that you weren’t married at the time of the beating, were you?

trollolololol February 18, 2013 at 3:45 am

I don’t understand why in the world people are making a big deal over what will amount to a 10 day filibuster.

He’ll be confirmed when the Senate is back in session. The left should hand-wring over something marginally more important.

Morgan February 19, 2013 at 12:50 pm

Am I the only one excited to see an illustration from one of my favorite children’s books on this blog? Well done Professor Binder.

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