The campaign to reform Senate rules--most prominently those rules regarding the filibuster--has undeniably been fueled in large part by Democratic frustration at our inability to pass more and better legislation over the past two years.
However, it must be admitted that the current reforms being discussed, making the filibuster real and reducing opportunities for obstruction on nominations, would not have altered the outcome of any of the major legislative fights of 2009-2010. Even if both changes had been in place back in January 2009, the stimulus, housing, health care, energy, immigration, financial reform and tax cut fights would have all played out largely the same, at least in policy terms.
So why are we doing this at all? Because the proposed reforms would be big differences outside of the major legislative fights. Most notably, the legions of vacancies in our federal judicial, regulatory, law enforcement and diplomatic departments would be nowhere as severe. In September, the Center for American Progress put this vacancy crisis in perspective:
The Washington Post’s count of 526 agency and White House appointees excludes ambassadors, U.S. Attorneys, U.S. Marshals, and federal judges. When you add these Senate confirmed positions into the mix, the time required to confirm all the president’s nominees grows even more:
- There are 181 senate-confirmed “Chiefs of Missions” leading an equal number of embassies abroad. Confirming each of these ambassadors would require just over 226 days.
- The 93 U.S. Attorneys would require over 116 days to confirm.
- Confirming 94 U.S. Marshals would require nearly 118 days.
- Presently, 103 federal judgeships are vacant. They would require almost 129 days to confirm.
In total, this adds up to over 1,200 days and nights required to confirm all of a president’s nominees over minority objection—more Senate work days than there are in two entire presidential terms.
Almost all of these vacancies are caused not because they lack 60 votes for confirmation--they have the votes just fine. What they lack is time, a problem caused by existing Senate rules:
Unless the senators unanimously consent to holding a vote immediately, dissenting senators may demand up to 30 hours of post-cloture debate before a vote can actually take place, and they can prevent the Senate from considering any other business during these hours of delay.
If a single Senator objects to a nomination, s/he can stall all Senate business for 30 hours. Senators like Tom Coburn and Jim DeMint have systematically wielded this power to deny unanimous consent to even the most routine nominations. They have done so with the express purpose of grinding the government to a halt, and their efforts have yielded remarkable success. For example, the judiciary has actually grown more Republican over the last two years:
A determined Republican stall campaign in the Senate has sidetracked so many of the men and women nominated by President Barack Obama for judgeships that he has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago.
The delaying tactics have proved so successful, despite the Democrats' substantial Senate majority, that fewer than half of Obama's nominees have been confirmed and 102 out of 854 judgeships are vacant...
When Bush left office, Republicans had appointed just under 60 percent of all federal judges. Twenty months later, the number has dipped only slightly to a shade under 59 percent, according to statistics compiled by the liberal Alliance for Justice. Because of retirements, the percentage of Republican-nominated district judges actually has gone up.
Making the motion to proceed not subject to filibuster, and ending post-cloture debate time on nominations, would put an end to this. Nominations would only be blocked when there were 41 Senators opposed to the nomination. This would fill hundreds of these vacancies very quickly, making for a larger victory than any legislative accomplishment reasonably within the reach of Congressional Democrats in 2011-2012. The people enforcing and interpreting laws and regulations are just as important as the laws and regulations themselves, after all. Further, a government riddled with vacancies becomes a self-fulfilling conservative prophecy of a government that doesn’t function well.
None of this is to discount the potential political and messaging benefit of making the filibuster a real filibuster. It is entirely possible that by making the filibuster real, its use will be significantly reduced and attention to Republican obstructionism will be greatly heightened. However, relative to the concrete benefits of plugging hundreds of holes in the federal government, it is just more difficult to predict what impact the real filibuster will have.
There is a lot to be won in the rules reform fight, even if its flying under the radar. You can join the campaign by signing our petition to make the filibuster real here.
