How 52 Senators Made 60 = 51

  • March 19, 2014
  • 25 Stan.L.& Pol'y Rev. 9
Orrin G. Hatch

On November 21, 2013, Senate Majority Leader Harry Reid declared that “unbelievable, unprecedented obstruction” by Republican filibusters had made the confirmation process “completely unworkable.”[1] As a result, he said, Democrats were forced to eliminate virtually all nomination filibusters. This Article examines how and why the Democrat Senate made such a sweeping change to the confirmation process. 

I.     The Senate and the Filibuster

America’s founders believed that majority rule is a foundation of our republican form of government.[2] Like other legislative bodies, the U.S. Senate operates by majority rule; an action by the majority of a quorum is an action of the body. For most of American history, while a simple majority could confirm a nomination or pass legislation, proceeding to that final vote required a supermajority. This potential difficulty in proceeding to a final vote has been “one of the Senate’s most characteristic procedural features”[3] for more than 200 years. It has shaped how the Senate conducts its own business and interacts with the House of Representatives as part of the legislative branch.

From 1806 to 1917, proceeding to a final vote required unanimous consent; even a single Senator could prevent the vote by objecting.[4] In 1917, the Senate adopted Rule 22, which created a two-step process for invoking cloture, or ending debate. A cloture motion signed by at least sixteen Senators puts before the Senate this question: “Is it the sense of the Senate that the debate shall be brought to a close?”[5] A cloture vote provides the answer to that question and determines the existence of a filibuster. Rule 22 states that cloture on any “matter pending before the Senate . . . except on a measure or motion to amend the Senate rules” requires “three-fifths of Senators duly chosen and sworn.”[6]

The word “filibuster” has come to have a variety of informal uses, but its substantive definition here is straightforward. Most Senate business has traditionally been structured by unanimous consent, including scheduling votes and limiting debate. Rule 22 was adopted as a backup means of ending debate when Senators object to unanimous consent. If a cloture vote passes, debate ends and a final vote can occur. If a cloture vote fails, debate continues and a final vote cannot occur. A filibuster, therefore, exists when a cloture vote fails because that procedural act makes a final vote impossible. This definition explains why every attempt at filibuster reform has focused on the numerical threshold required for a cloture vote to pass.[7]

The Senate took its first cloture vote on a nomination in 1968.[8] Over the next thirty-five years, only seventeen nomination cloture votes failed and only three of those filibustered nominations were not confirmed.[9] Within days of President George W. Bush’s 2001 inauguration, Senate Minority Leader Tom Daschle vowed that Democrats would use “whatever means necessary,”[10] including the filibuster,[11] to defeat judicial nominations. Senate Democrats later held a private retreat where “a principal topic was forging a unified party strategy to combat the White House on judicial appointments,” including a plan to “change the ground rules” of the confirmation process.[12] During the 108th Congress (2003-04), Democrats conducted twenty filibusters that prevented confirmation of ten Bush nominees to the U.S. Court of Appeals.

President Obama took office in January 2009, the first time since 1994 that Democrats controlled the White House and the Senate. Democrats had embraced nomination filibusters when in the Senate minority under a Republican President, but now sought to prevent filibusters as a Senate majority under a Democratic President. Doing that reliably, however, required avoiding Rule 22’s sixty-vote requirement to end debate on nominations.

II.     The Nuclear Option

Democrats used the so-called “nuclear option” to sidestep Rule 22. This label refers to the politically explosive impact of two methods by which a simple majority of Senators can change how the Senate operates. The first method allows a simple majority, at the beginning of a new two-year Congress, to end debate and adopt a resolution amending Senate rules. This method is based on the theory that the Senate’s written rules, including Rule 22’s supermajority cloture requirement, do not apply until the Senate begins using them to conduct its business. Until then, a simple majority could end debate and amend Rule 22. While this nuclear option method has never been implemented, both parties have threatened to use it.[13]

Democrats used the second method to abolish most nomination filibusters. This method allows a simple majority to change Senate procedures by affirming or rejecting the presiding officer’s interpretation of Senate rules. On November 21, 2013, Majority Leader Reid raised “a point of order that the vote on cloture under rule [22] for all nominations other than for the Supreme Court of the United States is by majority vote.”[14] The presiding officer ruled against that point of order since Rule 22 sets that threshold at three-fifths. The Majority Leader appealed that ruling to the Senate, which voted 48-52 against accepting it as the “judgment of the Senate.”[15] The presiding officer responded that “[u]nder the precedent set by the Senate today . . . the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair.”[16] The Minority Leader appealed this ruling, and the Senate voted 52-48 to accept it.

This parliamentary approach has been used in the past.[17] Previous instances, however, involved questions such as the precedence of certain motions over others or the relevance of certain material in legislative conference reports. None of those instances involved whether one number in the text of a Senate rule actually means another number altogether. This result would make sense if the Senate had actually amended Rule 22 to change the cloture threshold for nominations from three-fifths to a simple majority. But the text of Rule 22 remains unchanged, and it is difficult to understand how three-fifths can be “interpreted” to mean a majority. Nevertheless, by using the parliamentary version of the nuclear option, fifty-two Democrat Senators effectively made sixty equal fifty-one.

III.     Why Democrats Said They Did It

For nearly all of its history, proceeding to a final vote on a matter before the Senate required a supermajority. In a Dear Colleague letter dated February 23, 2010, the late Senator Robert Byrd wrote that the Senate “is the only place in government where the rights of a numerical minority are so protected.”[18] Because “the Constitution’s Framers intentionally designed the Senate to be a deliberative forum,” he wrote, “efforts to change or reinterpret the rules in order to facilitate expeditious action by a simple majority, while popular, are grossly misguided.”[19] Democrats used the nuclear option to take that step last November and the reasons they offered for this profound change demand close scrutiny.

1. The confirmation process was “completely unworkable”

Majority Leader Reid offered one general and one specific reason for abolishing nomination filibusters. First, he claimed generally that “confirmation of presidential nominees has become completely unworkable” because of “unbelievable, unprecedented obstruction.”[20] The data exist to evaluate this claim. The official Résumé of Congressional Activity appears in the Congressional Record and provides the number of nominations received and confirmed by the Senate each year.[21] The Senate confirmed 97.9% of President Obama’s nominations received during his first five years in office, compared to 94.7% for President George W. Bush and 98.7% for President Clinton.

Looking specifically at judicial nominations also shows that the confirmation process is not unworkable. During the 112th Congress (2011-12), for example, the Senate confirmed 111 judges, the highest tally for a single Congress in nearly two decades. In 2013, the first year of President Obama’s second term, the Senate confirmed more than twice as many judges as it had in President Bush’s fifth year. By last November, President Obama had appointed 24.6% of the federal judiciary, compared to 25.8% for President Bush and 28.9% for President Clinton at the same point in their tenure.

A new report from the Congressional Research Service shows that the Senate has confirmed a higher percentage of President Obama’s appeals court nominees than it did for President Clinton and has done so faster than it did for President Bush.[22] The evidence does not support the Majority Leader’s claim that the confirmation process had become “completely unworkable.”

2. There had been “168 filibusters of executive and judicial nominations”

The Majority Leader’s specific reason for abolishing nomination filibusters was that there had been “168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama administration.”[23] Evaluating this claim requires accurately defining a filibuster, which exists when a cloture vote fails, making a confirmation vote impossible because debate cannot be brought to a close.

By November 21, 2013, when the Majority Leader asserted that there had been “168 filibusters,” a total of fifty-six cloture votes on judicial or executive branch nominations had failed, one-third of the number he claimed. Fourteen of those filibusters occurred during the Obama administration, one-sixth of the number he claimed.

These filibuster claims were so far off the mark because the Majority Leader was counting cloture motions rather than filibusters. As of last November, 178 cloture motions had been filed on nominations, 80 of them during the Obama administration. These totals nearly mirror the Majority Leader’s claims of 168 and 82, respectively.[24] 

A cloture motion, however, is only a request to end debate and can be filed at any time for any reason. As the Congressional Research Service has noted,  “[s]enate leadership has increasingly made use of cloture as a normal tool for managing the flow of business on the floor, even at times when no evident filibuster has yet occurred.”[25] For example, “[i]n many instances, cloture motions may be filed not to overcome filibusters in progress, but to preempt ones that are only anticipated.”[26]

I have served in the Senate under eight Majority Leaders, four Democrats and four Republicans. When Senator Reid became Majority Leader in the 110th Congress, the total number of cloture motions immediately doubled. No comparable jump had previously occurred between Congresses, even when the President’s party similarly lost control of the Senate.[27] Majority Leader Reid has filed 93% of cloture motions since then, compared to an average of 66% for his seven predecessors. In other words, the Majority Leader is responsible for the very statistic—the number of cloture motions—that he offers as proof that filibusters must be abolished.

Using cloture motions as a proxy for filibusters is misleading in other ways. Many cloture motions, for example, are withdrawn without a cloture vote taking place at all. As of last November, only 53% of Majority Leader Reid’s cloture motions on nominations had resulted in a cloture vote, compared to an average of 75% under his predecessors. Second, while the number of cloture votes has dramatically increased under Majority Leader Reid, the number of filibusters has significantly declined. Only 9% of cloture votes on nominations have failed under Majority Leader Reid, compared to an average of 57% under his seven predecessors. Far from making the confirmation process “completely unworkable,” filibusters in recent years have been less a factor than in the past.

Third, equating cloture motions with filibusters obscures the fact that 83% of the nominations on which a cloture motion was ever filed were confirmed. Counting cloture motions as filibusters requires arguing that ending debate is a filibuster and that confirming nominations is obstructing them.

IV.     Why Democrats Really Did It

The evidence does not support Democrats’ stated reasons for abolishing nomination filibusters. The evidence shows instead that the confirmation process is not only workable, but that the incidence of nomination filibusters is significantly lower than in the past. Democrats must have had other objectives in mind to fundamentally alter the confirmation process.

One reason that Democrats abolished nomination filibusters was to distract attention from how they have, in both obvious and subtle ways, made the confirmation process less workable. Democrats, for example, pioneered the very tactic that they have now abolished. Majority Leader Reid himself voted twenty-six times to filibuster judicial nominations, more than all but three current Senators of either party. In fact, Democrats had cast 74% of all votes for judicial filibusters in American history.

But Democrats also introduced more subtle obstruction tactics into the confirmation process. Confirmation tradition, for example, had been to use time-consuming roll call votes for controversial nominees but unanimous consent or voice votes for the rest. Between 1789 and 2001, the Senate took a roll call vote on only four percent of the life-tenured judges it confirmed, and only 17% of those roll call votes were without opposition. Under President George W. Bush, after Democrats changed the confirmation ground rules, the Senate took a roll call vote on 59% of the judges it confirmed and 86% of those votes were unopposed.

Another reason that Democrats abolished nomination filibusters had to do with the future rather than the past. President Obama is increasingly seeking to pursue political objectives through executive action rather than the legislative process. These avenues include substantive executive orders as well as rulemaking by executive branch agencies rather than legislation by Congress.[28] For that strategy to succeed, the President must appoint individuals to executive branch agencies to make such rules and sympathetic judges to uphold them against legal challenge.

This imperative explains why Democrats fought so hard in 2013 to fill three vacancies in the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit’s caseload, already the lowest in the country, had been declining for more than a decade and justified only eight active judges.[29] Democrats not only wanted to fill those unneeded seats, but were willing to abolish a defining feature of the Senate to do so. The explanation becomes clear when considering that the D.C. Circuit has jurisdiction over many cases challenging executive agency rules. Administrative cases comprise nearly one-third of new appeals filed in the D.C. Circuit, compared to an average of 14% for the other circuits.[30]

Democrats wanted to abolish the filibuster to clear the way for President Obama to appoint individuals who would make rules in the executive branch, and uphold those rules in the judicial branch. These are rules that Congress, which has authority to establish substantive policy on such issues, might choose not to enact in the legislative branch.[31]

Abolishing nomination filibusters removed an incentive for moderation and collaboration by the President in making nominations and for consensus among Senators in confirming them. It destroyed what has been a defining feature of the Senate for more than two centuries. Since Rule 22 was first adopted, advocates of filibuster reform have sought to adjust the balance between the majority’s right to decide and the minority’s right to debate but never sought to destroy it altogether. Doing so sacrificed, by unusual means and for unjustified reasons, a defining feature of the Senate in favor of short-term political objectives.



 

  [1]. 159 Cong. Rec. S8414 (2013).

  [2]. Alexander Hamilton called majority rule the “fundamental maxim,” The Federalist No. 22 (Alexander Hamilton), and James Madison called it the “fundamental principle,” The Federalist No. 58 (James Madison), of republican government. See also Walter J. Oleszek, Cong. Research Serv., 98-779, Super-Majority Votes in the Senate 1 (2010) (“Overall, the Framers generally favored decision-making by simple majority vote.”).

  [3]. Richard S. Beth & Valerie Heitshusen, Cong. Research Serv., RL 30360, Filibusters and Cloture in the Senate 1 (2013).

  [4]. See Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster, 28 Harv. J. L. & Pub. Pol’y 205, 213-16 (2005); Orrin G. Hatch, Judicial Nomination Filibuster Cause and Cure, 2005 Utah L. Rev. 803, 839-40.

  [5].  Senate Comm. on Rules & Admin., Standing Rules of the Senate, S. Doc. No. 113-18, at 15-17 (2013) [hereinafter Senate Rules].

  [6].  Id.

  [7]. See Gold & Gupta, supra note 4, at 217-60; Hatch, supra note 4, at 842-49.

  [8]. On October 1, 1968, the Senate voted 45-43 on a cloture motion regarding President Lyndon Johnson’s nomination of Abe Fortas to be Supreme Court Chief Justice. At that time, Rule 22 required two-thirds of Senators present and voting to end debate. Twenty-four Republicans and nineteen Democrats voted against cloture and it is doubtful that Fortas had majority support for confirmation. Fortas asked President Johnson that day to withdraw his nomination. See John Cornyn, Our Broken Confirmation Process and the Need for Filibuster Reform, 27 Harv. J. L. & Pub. Pol’y 181, 218-23 (2003); Hatch, supra note 4, at 823.

  [9]. See Authorized Judgeships, U.S. Courts, http://www.uscourts.gov/JudgesAndJudgeships/AuthorizedJudgeships.aspx (last visited Mar. 15, 2014) (presenting data on the number of judgeships); History of the Federal Judiciary, Federal Judicial Center, http://www.fjc.gov/history/home.nsf/page/judges.html (last visited Mar. 15, 2014) (presenting data on judicial confirmations); Roll Call Votes, U.S. Senate, http://www.senate.gov/pagelayout/legislative/a_three_sections_with_teasers/votes.htm (last visited Mar. 15, 2014); Senate Action on Cloture Motions, U.S. Senate, http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm (last visited Mar. 15, 2014). The author is responsible for the calculations and conclusions based on this data that are presented in this Article.

  [10]. Muriel Dobbin, Dems Send President a Message, Chi. Sun-Times, Feb. 2, 2001, at 21.

  [11]. Reuters, A Democratic Message to Bush: Ashcroft Foes Press On, But Concede He’ll Win, Newsday, Feb. 1, 2001, at A17.

  [12]. Neil A. Lewis, Democrats Readying for Judicial Fight, N.Y. Times, May 1, 2001, at A19.

  [13]. As the 109th Congress opened, Majority Leader Bill Frist stated that “I reserve the right to propose changes to Senate Rule [22] and do not acquiesce to carrying over all the rules from the last Congress.” 151 Cong. Rec. S14 (daily ed. Jan. 4, 2005) (statement of Sen. Frist). That step signaled that he might later pursue changing Rule 22 by simple majority. On May 20, 2005, he filed a cloture motion on the nomination of Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit, which set in motion events that might result in Republicans using the nuclear option. On May 23, 2005, a group of fourteen Senators signed an agreement to oppose judicial filibusters except in “extraordinary circumstances” and to oppose the nuclear option. The seven Democrats, by joining fifty-five Republicans, were enough to determine whether a supermajority supported a filibuster, and the seven Republicans, by joining 45 Democrats, were enough to determine whether a simple majority supported the nuclear option. The so-called “Gang of 14” agreement, which applied only to the 109th Congress, is available at http://images.dailykos.com/images/user/3/TheDeal.pdf. At the beginning of the 112th Congress, Senator Tom Udall introduced a resolution to amend Rule 22 and argued that “a simple majority of the Senate can end debate . . . and adopt its rules at the beginning of a new Congress.” 157 Cong. Rec. S34, (2011). For an extensive analysis of this nuclear option method and its role in the history of filibuster reform, see Gold & Gupta, supra note 4, at 217-60.

  [14]. 159 Cong. Rec. S8417 (2013). Senate Rule 20 allows any Senator to raise a “question of order” that, “unless submitted to the Senate,” must be decided by the presiding officer without debate. Senate Rules, supra note 5. A presiding officer’s ruling on a question of order may be appealed to the full Senate and must be “decided at once, and without debate.” Id. Tabling an appeal of the presiding officer’s ruling “shall be held as affirming the decision of the Presiding Officer.” Id.

  [15]. Democratic Senators Carl Levin of Michigan, Joe Manchin of West Virginia, and Mark Pryor of Arkansas voted with all forty-five Republicans to affirm this ruling.

  [16]. 159 Cong. Rec. S8418 (2013).

  [17]. See Gold & Gupta, supra note 4, at 262-69. Before he implemented the nuclear option to abolish nomination filibusters, Majority Leader Reid said, “the Senate has changed its rules 18 times, by sustaining or overturning the ruling of the Presiding Officer, in the last 36 years—during the tenure of both Republican and Democratic majorities.” 159 Cong. Rec. S8415 (2013). The list to which he referred comes from a memo dated July 11, 2013, circulated by Senator Jeff Merkley. Neils Lesniewski, Democrats’ Memo on Senate Precedent Changes, Roll Call (July 15, 2013, 5:07 PM), http://blogs.rollcall.com/wgdb/democrats-memo-on-senate-precedent-changes/ (excerpting the memo). 

  [18]. Letter from Senator Robert Byrd to Senate (Feb. 23, 2010), available at http://notebook.blueridgeconcepts.com/_media/people/byrdletter-20100223.pdf.

  [19]. Id.

  [20]. 159 Cong. Rec. S8414 (daily ed. Nov. 21, 2013) (statement of Sen. Reid).

  [21]. See Résumé of Congressional Activity, U.S. Senate, https://www.senate.gov/pagelayout/reference/two_column_table/Resumes.htm (last visited Mar. 15, 2014).

  [22]. Barry J. McMillion, Cong. Research Serv., R43369, U.S. Circuit and District Court Nominations During President Obama’s First Five Years: Comparative Analysis with Recent Presidents 4, 10 (2014).

  [23]. 159 Cong. Rec. S8414 (daily ed. Nov. 21, 2013) (statement of Sen. Reid).

  [24]. On March 12, 2014, the Majority said that he has filed “cloture motions . . . more than 500 times” and that then-Majority Leader Lyndon Johnson “only had to face one filibuster” while “I have had to deal with 500.”  160 Cong. Rec. S1596 (daily ed. Mar. 12, 2014) (statement of Sen. Reid). Other Senators have made the same error.  See, e.g., 157 Cong. Rec. S38 (daily ed. Jan. 5, 2011) (statement of Sen. Schumer); 158 Cong. Rec. S6883 (daily ed. Nov. 12, 2012) (statement of Sen. Durbin); 158 Cong. Rec. S8619 (daily ed. Jan. 1, 2012) (statement of Sen. Whitehouse).  Debating filibuster reform at the start of the 112th Congress, the average number of annual “filibusters” that Senator Merkley claimed for specific decades corresponds exactly with the average number of cloture motions filed during those periods: sixteen per year during the 1970s, twenty-one during the 1980s, thirty-six during the 1990s, forty-eight during 2001-10. 157 Cong. Rec. S37 (daily ed. Jan. 5, 2011)  (statement of Sen. Merkley). Both before and after Democrats abolished nomination filibusters, I explained on the Senate floor how this confirmation sleight-of-hand amounts to “filibuster fraud.” See, e.g., 159 Cong. Rec. S4637 (daily ed. June 9, 2013); 159 Cong. Rec. S5641 (daily ed. July 11, 2013); 159 Cong. Rec. S8584 (daily ed. Dec. 10 2013); 159 Cong. Rec. S8754 (daily ed. Dec. 11, 2013).

  [25]. Beth & Heithusen, supra note 3, at 1.

  [26]. Id. at 21.

  [27]. The Senate changed from Republican to Democratic control under a Republican President between the 99th and 100th Congress. The total number of cloture motions increased from 41 to 54. The Senate changed from Democratic to Republican control under a Democratic President between the 103rd and 104th Congresses. The total number of cloture motions increased from 80 to 82.

  [28]. On February 12, 2014, for example, President Obama issued an executive order requiring that federal contractors and subcontractors pay a minimum wage of at least $10.10 per hour beginning on January 1, 2015. Exec. Order No. 13658, 77 Fed. Reg. 9851 (Feb. 12, 2014); see also Zachary A. Goldfarb, Obama May Use Executive Action for Some Priorities Wash. Post, Feb. 10, 2013, at A13; Jacob Sullum, A Law Unto Himself, Nat’l Rev., Apr. 8, 2013, at 21; Adam J. White, Obama’s Regulatory Rampage, The Wkly. Standard, Jan. 28, 2013, at 24.

  [29]. 159 Cong. Rec. S4638-39 (daily ed. June 19, 2013) (statement of Sen. Hatch).

  [30]. Federal Court Management Statistics, U.S. Courts, (Mar. 14, 2014), http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics/courts-appeals-september-2013.aspx.

  [31]. 159 Cong. Rec. S8584 (daily ed. Dec. 10, 2013) (statement of Sen. Hatch).