National Press Club, Washington, D.C., July 10, 2013:
Alliance for Justice is very pleased to be a part of this discussion about the “Broken Senate.” I feel like we’re coming to the end of the fifth season of a bad reality show.
But what’s happening in the Senate is not fiction. It’s very real. The abuse of the filibuster has become a threat to the proper functioning of the government and to public faith in the institution of the Senate. A recent poll by The Economist put the approval rate of Congress at nine percent. That’s incredible, but not really surprising. It does make me wonder who those nine percent are. Family members? Campaign consultants?
It’s deplorable that the American people have so little regard for a crucial part of our government. It’s unhealthy for our democracy. And I don’t think there is any question that at least part of the problem has been the rampant misuse of the filibuster in the Senate, which has led to stalemate and gridlock in spite of the enormous problems the country now faces.
Let me be clear about something: The filibuster has a legitimate role when used responsibly. But we have entered an era of unprecedented abuse of rules and traditions, which is forcing the Senate to the brink of drastic action. The filibuster traditionally has been used to allow a minority to make a principled stand on matters of enormous and unusual importance. It forces the process to slow down and helps ensure that all voices are heard. It’s a signal that something of significance is at stake. But that’s not what’s happening now.
This is the crucial point to understand. As the motivation behind the filibuster has changed and its frequency increased, its legitimacy has declined. The fights over President Obama’s judicial nominees, for instance, are not ideological in any real sense. The president has gone out of his way to nominate men and women from the legal and political mainstream. Who could honestly say that the filibuster of Caitlin Halligan was some kind of titanic ideological fight?
Today’s filibusters are just crass politics. They reflect a desire to block the president’s agenda at every turn and feed the insatiable need of a hyper-partisan political base for endless obstruction. We’re in an era where one side believes cooperation is a dirty word—or an invitation to a primary challenge. When that intransigent attitude is paired with a procedural weapon as potent as the filibuster, gridlock is the result. And that’s what makes the situation different today from what it has been in the past. And that’s why the nuclear option is back on the table.
Serious talk about changing the rules has been reborn because the filibuster has evolved from a targeted tool to a weapon of indiscriminate disruption. The entire legislative process is now held captive to this threat. We’ve gotten to the point where just the threat of a filibuster is enough to derail the Senate. The abuse of the process has created a de facto threshold of 60 votes for action—a supermajority requirement for everyday business that can be found nowhere in the Constitution.
It’s important to remember that the problem isn’t just that bills and nominations with clear majorities are stopped, but that many nominations are never made and bills are never proposed, even though they could achieve a simple majority if they were given a chance. There is an invisible price for gridlock that the public never sees.
Obviously, the first test will come in the next few days when cloture petitions are expected to be filed on a series of executive branch nominees—Richard Cordray, Tom Perez, Gina McCarthy, and nominees for the National Labor Relations Board. What happens to these highly qualified nominees will set the tone for the rest of this Congress. If Republicans continue their current behavior and prevent final votes, then the choices will be narrowed to two options: allow crucial agencies that deal with hugely important issues to be left leaderless or reform the rules to permit up-or-down votes.
But the battle over executive nominees is just the beginning. The next big fight looming later this summer is over the President’s three nominees to the D.C. Circuit Court of Appeals. This is a case of the Republicans engaging in what will be a kind of Group Filibuster, where they don’t even pretend to care about the qualifications or ideologies of the individual nominees. They just don’t want anyone appointed by President Obama to this crucial court no matter who they are.
Senator Grassley has complained that the President is trying to “pack the court,” as if filling vacant judgeships is some kind of unprecedented power grab. Republicans pretend to be outraged that the president has sent names forward for empty seats on the 11-member D.C. Circuit–just like every other president has done since the Grover Cleveland administration. This would be laughable if the consequences weren’t so serious.
Of course, we know why the Republicans will threaten to filibuster Patricia Millett, Nina Pillard, and Robert Wilkins. The D.C. Circuit is the federal appeals court that most closely oversees the actions of federal agencies on topics like the environment, consumer protections, workers’ rights, banking regulations, and other vital issues. Those are the same issues, by the way, that are at stake in the current executive nominations fights. In some ways, the two big summer battles over executive and judicial nominations are really one big fight over the future of the country. Fair enough. But the question is, will the Senate be permitted to bring these issues to a final vote on the merits, or will procedural hurdles be erected to prevent democracy from functioning.
So at some point in the next several months, when the three DC Circuit nominees reach the floor, the Senate will have to make another set of choices, just like the ones it will start to face next week on executive nominations. Either accept the obstructionism of a hyper-partisan minority or change the rules to allow the President and the Senate to do the jobs the Constitution demands of them.
For those who care about our democracy and the courts, the choice is easy.
The American people are saying enough is enough. The time for reform is rapidly approaching.