Why the Hagel Filibuster Is Difficult to Explain

The Senate is taking up cloture on the Chuck Hagel nomination today, and this time it’s expected to pass, most likely easily — I haven’t seen any estimates, but I’m guessing it will be around 70 votes (maybe more; again, I haven’t seen anything about what Republicans will do). Some time after that, we’ll get a final vote on Hagel; he’ll probably fall short of 60 yes votes.

So it turns out we had not only had one or more “yes/no” votes, who were yes on cloture but no on the nomination, but quite a few no/yes/no votes: against cloture the first time, for it the second time, while eventually voting against confirmation.

The trick for reporters is how to write about and talk about what’s happened.

Was there a filibuster?

Yes. Of course.

One more time: requiring 60 is a filibuster. Every Republican supports that standard. There are no Republicans who believe that 60 should never or only rarely be invoked; the only question is whether, in this particular case, any particular case, they will support the filibuster. That there is a filibuster, on everything, is both assumed and institutionalized.

Moreover, every Republican who opposed cloture on the first go-round was supporting the filibuster. As it will turn out, some of those Republicans were only supporting the filibuster for a limited time. That still means they supported it!

Also, and as obvious as this is I’ve seen lots of people get confused by it: the fact that a filibuster is eventually defeated makes it a failed or defeated filibuster; it doesn’t mean that there was no filibuster at all (or else Strom Thurmond’s record-setting filibuster against civil rights wasn’t really a filibuster!).

Perhaps some of the confusion on this has to do with the motives of filibustering Senators. That’s what PolitiFact gets wrong in a piece they did on the Hagel filibuster a while ago (they properly cited Greg Koger, Sarah Binder, and Steve Smith all saying that it was a filibuster, and yet wound up calling GOP claims that it was not a filibuster only “Mostly False” rather than “False” or “Pants on Fire”). It is quite true that Senators may try to delay a final vote for various reasons. They may be attempting to prevent any final vote and therefore defeat the measure under consideration, but they may also use a delay in order to make a deal, or simply to allow more time for opposition to form. Indeed, it appears in Hagel nomination that GOP opposition of cloture the first time around was a combination of all those things. Some Senators — Inhofe, Cruz, maybe as many as 30 or 35 others — just wanted to defeat Hagel. Lindsey Graham said at the time that he wanted to block the nomination until the Obama Administration turned over information to him. And McCain (joined by up to about 15 others) sometimes joined in Graham’s argument, and at other times just said he wanted more time in case some “bombshell” was found.

Those are all different, and worth distinguishing — but they’re all filibusters!

Indeed, assuming that cloture is invoked today, the next step would be a vote, but if Republicans insist on taking up the full available hours of post-cloture time, then technically it would be proper to say that the filibuster continues. Even though at that point all the filibuster does is delay the vote further to a time certain, it’s still a delay, and a delay is a filibuster.

The one thing that I’ll say is a bit tricky is whether it’s correct to say that “Republicans” are filibustering. In this case, for example, a few Republicans did support cloture the first time around; certainly they were not supporting the filibuster…but most Republicans were. Sometimes, however, it’s harder to know, especially when the delay doesn’t produce an actual cloture vote, or when Republicans are more split. It seems to me that it’s correct to say that Republicans are filibustering in that all of them, without exception, support the 60-vote standard — even for those times when they are part of the 60. But clearly not all Republicans actually support the filibuster on everything; sometimes, very few of them support the filibuster, even though they all support the concept of the 60-vote standard. Yes, it’s tricky to write about that; what I think reporters should strive to do is to find language that reflects the reality of the Republican-imposed 60-vote standard, on top of language that reflects what Republicans (and, for that matter, Democrats) are actually doing on any vote.

At any rate, there’s no question about whether there has been a filibuster on Chuck Hagel. What I’d say is that there’s also no question about whether there’s been a filibuster against every nominee; there has been. Even the ones who had unanimous support. As long as they insist on 60, it’s a filibuster.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.