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Posted at 11:42 a.m. on Dec. 30, 2013
The Senate of the 113th Congress is on track to feature the most filibuster-breaking votes in history, and there’s no reason to think it won’t reach that milestone.
The 64 roll call votes on debate-limiting motions — also known as cloture — in the first session are more than half of the 112 in the record-setting 110th Congress, according to Senate statistics. While the traditional expectation is that the second session has less time for business because senators leave early to campaign, the recent changes to the Senate’s nomination rules make additional cloture votes more likely.
Following the use of the “nuclear option,” Senate Majority Leader Harry Reid, D-Nev., can pretty much get any of President Barack Obama’s nominees confirmed by cutting off debate with a simple majority vote, and the time for debate on district court judgeships and most executive branch nominees had already been substantially curtailed under a prior agreement.
Of course, not all “filibuster” votes are created equal. In some cases this year, Democrats were legitimately attempting to overcome GOP-led blockades. In other cases, Republicans argued there was no objection, or claimed they were only delaying an issue in order to secure more debate time or votes on their amendments.
Still, speaking only of the win-loss record, Reid had a pretty good year. Of the 63 cloture motions filed by Democrats to break real or perceived filibusters, the Senate only rejected 13 of them, almost an 80 percent winning record with a slightly larger Democratic caucus than in the 112th Congress.
Three of those rejected cloture bids came in the back-and-forth over blunting a scheduled increase in student loan interest rates. One of them was actually a Reid cloture motion on proceeding to a GOP proposal spearheaded by Sen. Tom Coburn of Oklahoma as part of dueling test votes that were set up for failure.
Of course, the comparison between 2013 and prior years is not all apples to apples because the list contains all of the nomination cloture votes following Reid’s use of the nuclear option to set a precedent that only a majority is needed to invoke cloture on nominations except those to the Supreme Court. It’s a clear indication of the increased power of the majority in the new Senate.
Four of the times Reid lost cloture votes in 2013, he was setting up the Democratic argument to impose the nuclear option. He did so by forcing votes on vacant seats on the D.C. Circuit Court of Appeals, a move that Republicans opposed.
However, the very first failed 60-vote threshold cloture motion of the 113th Congress appears to have laid the groundwork for the seismic changes to come.
It was Feb. 14, on the nomination of former Sen. Chuck Hagel, R-Neb., to be Defense secretary. Republicans argued at the time (and have repeatedly said since then) that they only wanted more time to get questions answered.
“It’s not a filibuster,” Sen. Johnny Isakson said at the time. “All we’re doing is extending debate. We could have another vote tomorrow.”
To the Georgia Republican’s point, the Senate ultimately invoked cloture on and confirmed Hagel shortly after the Presidents Day recess. However, Isakson’s comment was another reminder that the filibuster is in the eye of the beholder. And as became clear during the July rules change standoff that led to an ultimately short-lived detente, the delay in the Hagel confirmation particularly bothered Reid, who had been a longtime skeptic of changes to the filibuster rules.
After deploying the nuclear option, Democrats invoked cloture on a total of 17 nominees under the new procedure, including several during all-night sessions. The list includes three individuals who previously fell short of the 60-vote threshold that used to be required. Those three are new D.C. Circuit judges Nina Pillard and Patricia Ann Millett, as well as Rep. Melvin Watt. The North Carolina Democrat is leaving the House to take the helm of the Federal Housing Finance Agency.
The results would’ve been more lopsided, but Democrats decided not to push forward with cloture votes on another batch of nominees that would have delayed the arrival of the Christmas break. The get-out-of-town deal set up confirmation of Janet L. Yellen as chairwoman of the Federal Reserve on Jan. 6.
The two new judges seem all but certain to be joined eventually by Robert L. Wilkins on the appellate bench. The current district judge was blocked under the 60-vote requirement and Democrats did not advance his nomination on reconsideration before the Senate departed for the holiday season.
It may take a bit of time in January to queue up the next slew of confirmation votes under the new expedited procedure, though. Republicans demanded that almost all nominees pending before the Senate at the time of adjournment be returned to the White House. That means committees will need to repeat the process of reporting them to the floor for consideration.
“Republicans have for the first time ever, refused to allow any currently pending judicial nominees to be held over so that they could be ready for immediate action next year. For purely political reasons, Senate Republicans are forcing us to duplicate work next year that we have already completed in 2013,” Judiciary Chairman Patrick J. Leahy, D-Vt., said in a Dec. 20 statement. “It is a waste of taxpayer dollars and valuable resources that could be spent addressing the difficult issues facing our Nation.”
For Republicans, objecting to the wholesale return of nominees is one in a series of responses to Reid’s nuclear maneuver.
When Majority Whip Richard J. Durbin, D-Ill., tried to get the pending nominations carried over into 2014 just before the Senate left, Republican Sen. Lindsey Graham of South Carolina blocked the move, citing the collapse of comity.
“All I can say is that the normal way the Senate has operated for a couple of hundred years has been destroyed this year, and asking that normalcy come about now is beyond the pale, but we are where we are,” Graham said.