Opinion Columns & Blogs

The future of the filibuster

Here's the important thing to understand about life in the now-expired 111th Senate: Near as I can tell, every nomination made by President Obama — certainly every nomination that made it through committee — had the support of at least 60 senators, and yet every single nomination was filibustered.

The key to this is to understand that to filibuster something isn't (necessarily) to speak out against it; to filibuster something simply involves insisting on 60 votes or insisting on using other tactics available to individual or small groups of senators that have the effect of making confirmation more arduous for the majority. Even supermajorities of 60. Even very large majorities.

Now, as long as 60 senators agree, it's possible to defeat a filibuster, but the costs, as Sen. Jeff Merkley, D-Ore., and other reformers have noted, are almost entirely absorbed by the majority. Thus, even if absolutely no one opposes a nomination, it still makes sense for anyone opposed to other items in the majority's agenda to filibuster that nomination, because it takes away time from those other items, leaving the majority with a choice of either jettisoning one or the other.

What will happen to nominations in the 112th Senate? It's no longer necessary for Republicans to use the Senate filibuster to slow down the Democrats' agenda; the Republican House will do that quite effectively. So Sen. Lamar Alexander, R-Tenn., argues that we'll see fewer filibusters, and it's certainly possible that Republicans may stop using additional delaying tactics against noncontroversial nominations.

However, since filibustering imposes virtually no costs on the minority, at least in the modern Senate in which the norm against filibustering is long gone, there's every incentive for the minority to filibuster even if they don't really oppose something or someone. Governing is all about bargaining, and the filibuster under current rules gives opponents of anything a powerful bargaining chip.

That was true for smaller minorities in the 111th Senate, who could threaten only to chew up valuable floor time. It will be even truer for larger minorities in the 112th Senate, who can actually threaten to use the filibuster to defeat nominations. So I think Alexander is wrong; while it's impossible to see more filibusters (since by insisting on 60 votes, Republicans already filibustered everything), it's very likely we'll see just as many. And that makes the question of Senate rules reform absolutely crucial.