Talking about the filibuster

December 6, 2011

Over at his blog, John Bernstein makes a good point about how reporters need to be careful when using the term “filibuster” to describe a discrete event in the Senate:

What you don’t want is, as the WaPo’s Felicia Sonmez put it in an otherwise very nice story, that “Republicans on Tuesday filibustered the nomination.” Why not? Because they’ve been filibustering it all along, not just on Tuesday — and because they would have been filibustering even if they had failed to sustain it in the cloture vote. That is, a filibuster that fails to stop something is still a filibuster (after all, we all call what Strom Thurman did in 1957 a filibuster, even though eventually he lost and the bill passed). Politico’s Scott Wong also had it wrong with similar wording. The Hill’s Josiah Ryan had the somewhat better “The Senate voted to sustain a filibuster,” but unfortunately the headline was the terrible “Senate GOP votes to defeat…”, which takes the filibuster out entirely and suggests that a majority voted against Halligan. The AP had “blocked…failed to break a filibuster,” which is probably the best of the lot.

I think this is quite right. What I’m more torn about is Bernstein’s preferred language:

But I’d highly recommend “defeated by filibuster.” Or, if you want to be even more accurate and convey more information: “defeated by minority filibuster.” It’s concise, and includes the two crucial facts: that the nomination was in fact defeated, and that the means of defeat was a filibuster.

The problem I see with “defeated by filibuster” is twofold. First, it doesn’t tell you how the filibuster won; it could be the case that a cloture vote was defeated (which is what actually happened today). But it could also be a number of other things. The Majority Leader could have pulled the bill/nomination from the floor upon the realization that the votes for cloture weren’t there. Or the leadership could have sought unanimous consent to proceed to the bill/nomination, and abandoned it when there was objection. Or the leadership could have never attempted to bring the bill/nomination to the floor in the first place, because in private discussions they were told that there would be objection to the UC request. All of those things, I think, would fit under the concept of “defeated by filibuster.”

Second, “defeated by filibuster” isn’t technically correct in reference to what happened on the nomination today. Cloture was not invoked, and under regular order that would still leave the nomination as the pending business of the Senate. The leadership is perfectly free to continue the debate on a bill/nomination in which cloture is not invoked. Now, you might say, wait a second Matt, the cloture vote came up under a UC agreement and everyone knows that the cloture vote was the actual vote in this case and that its defeat means the defeat of the nomination for all intents and purposes. And in this case, I agree. But that same argument could be used to justify any description of what happened, including Felicia’s “filibustered the nomination” language. After all, it’s just as easy to argue that everyone knows what that means, too.

I guess my point is that I think the best language is the language that is most precise. I suppose my preferred language for what happened today would be something like  “the Republican minority defeated a motion to invoke cloture and end debate” on the nomination. The objection, of course, is that such a phrase is mealy and maybe muddles the water more than it clears it, because it throws in the concepts of “motion,” “invoke,” and “cloture,” none of which may be familiar to some readers. I guess it could be simplified to “the Republican minority defeated a vote to end debate” and that would work too.

Of course, the lack of the word filibuster might bother some people, but I’m just as well to be done with it; as described above, the use of that word can mean any number of things, and doesn’t really tell you much about what actually happened. If the goal is to concisely and accurately describe what happened and make sure the reader realizes that the will of the majority was thwarted, I’m comfortable with my suggestion. I’m willing, however, to be convinced otherwise.

Looking at the bigger picture, part of the problem here is that it’s actually not that easy to define what is and what isn’t a filibuster. The very concept of a filibuster is something like the concept of evolution: it’s a way of describing a process, not something that exists on its own. There’s no “motion to filibuster”; it’s not part of the rules, but rather a consequence of the rules. Just as evolution describes the process of repeated natural selection, filibuster —in the broadest sense — describes the strategic and tactical process of not allowing majority final-passage votes to occur, either by making it too costly time-wise for the majority to expend the necessary floor time to move the bill under regular order, or by making it utterly impossible to do so by holding together a coalition large enough to block repeated cloture votes, or both.

The key to thinking about the filibuster analytically is to set aside the narrow notion of unlimited debate, and start from the concept of  limited floor time and the much-wider consequences that flow from it. The goal of not allowing a majority final-passage vote is accomplished by a variety of visible tactics — including objecting to unanimous consent requests on motions to proceed or on limitations to debate, introducing large numbers of amendments to a bill, and of course defeating cloture motions. But it also includes the mere relaying of private information that any of those things will happen if the bill is called up.


2 Responses to Talking about the filibuster

  1. Jonathan Bernstein on December 6, 2011 at 4:51 pm

    Good stuff. I especially think the last paragraph is correct.

    But of course reporters aren’t really about thinking analytically; they want to convey information efficiently and with minimal error. And I’ll stick with my formulation.

    Let’s see…

    That failing to get cloture isn’t technically a final defeat? Not a problem; it’s a defeat. Same is true for any defeat in Congress; you wouldn’t object to saying that TARP was defeated in the House just because it could be and was brought back later, right? (I’m forgetting now whether it was the rule or the bill that lost, but doesn’t really matter).

    It’s true there’s no “motion to filibuster”, and that at times it’s not entirely clear whether a filibuster is under way or not, but surely once it gets to the point of a defeated cloture vote we know that it’s a filibuster, right?

    And, yes, the other things you describe are also “defeated by a filibuster”, and should IMO correctly be described that way, too — for example when Peter Diamond’s nomination was withdrawn before coming to a cloture vote. That’s the language for the lead, and then you can describe the specifics in the body of the story.

    • Matt on December 6, 2011 at 6:16 pm

      Good points. A few comments:

      1) I agree that we can definitely call something a filibuster if a cloture motion is defeated by less than 50 votes. For sure. But I think people need to be careful, because I don’t think it’s ok to start counting up filibusters based on the number of cloture votes, since there are at least two problems: some cloture votes fail and there’s a pure majority against them, and some cloture votes pass with way more than 60 votes, revealing that they were never necessary. Since the Majority Leader will often file for cloture pre-emptively now, I’m loathe to let him dictate how many filibusters there are simply by using unnecessary cloture votes (and there is strong incentive for the ML to make the minority look as combative as possible).

      2) I agree that in the big picture there’s no actual final defeat; anything can be brought up again. Fair enough. But I think cloture is a little different, because it doesn’t even temporarily dispose of the pending legislation. In fact, plenty of times they line up multiple cloture votes over the course of several days, using the first ones as test votes to see where they stand. So I take your point, in general, but I do think there are times when cloture failure is absolutely not the end of the line, even in the short term.


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