How we count Senate filibusters and why it matters

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Senate filibusters must be a fact checker’s nightmare.  We have no definitive, historical account of when filibusters have been conducted or threatened.   Moreover, unlike Justice Potter Stewart’s “I know it when I see it” definition of pornography, we can’t always see a filibuster.  Senate obstruction can take place behind closed doors without leaving footprints.   In short, counting filibusters is not easy, as evidenced last week in Glenn Kessler’s fact check of President Obama’s claim about Republican filibusters of the Democrats’ agenda.
Kessler wisely points out that the White House stretched its claim by including filibusters of presidential appointees in its count of Republican filibusters of measures aimed at the middle class.  Still, Kessler goes a step too far by redefining filibusters in ways that risk understating the GOP’s record-breaking exploitation of Senate rules.  To be sure, Democrats and Republicans disagree about who is to blame for the Senate’s parliamentary arms race.  But I feel compelled (as does Norm Ornstein) to set the record straight on what exactly filibusters are and how we should count them.
Kessler defines down filibusters in two ways.  First, Kessler suggests that only successful filibusters (when the minority blocks the majority from invoking cloture and bringing a matter to a vote) count as episodes of obstruction. Second, Kessler suggests that cloture motions on a single measure at various stages of the legislative process only count as a single filibuster.  Neither of these reformulations strikes me as capturing the admittedly-hard-to-capture nature of Senate proceedings.
First, keep in mind that filibusters aren’t strictly episodes of extended debate on the Senate floor.  Steve Smith in his excellent new work, The Senate Syndrome, defines a filibuster as a “refusal to allow a matter to a come to a vote.”  Such refusals (whether successful or not) come in several different forms — including extended debate on the floor, objections to requests for consent to move measures and nominations to a floor vote, and threats to filibuster or to object (sometimes in public, sometimes not). Whether or not a minority succeeds in blocking the majority through any of these tactics is besides the point. The success of a filibuster demonstrates the size of the opposition, but does not tell us whether or not the minority has attempted to block the majority. Counting filibusters requires that we capture both types.
Second, senators in recent decades have exploited the Senate’s Byzantine rules in new ways in pursuit of their policy and political agendas.  The proliferation of filibusters across all stages of the legislative process is a prime example.  A quarter-century ago, filibusters of the motion to proceed were rare (as were cloture motions to block them).  Today, motion to proceed filibusters are old hat.  Nor in the past did senators filibuster motions to go to conference; more recently, leaders avoid conferences altogether knowing they will need 60 votes just to name conferees. If we follow Kessler’s rule and count multiple efforts to invoke cloture across the lifespan of a measure as a single filibuster, then we miss much of the parliamentary arms race under way in the Senate.
With no perfect measure of attempted or actual filibusters, Senate observers most often rely on counts of cloture motions filed as a proxy for minority efforts to block the majority.  Granted, majority leaders sometimes file cloture motions to lend some predictability to Senate consideration of a bill. But my sense is that cloture motions more often undercount filibusters, such as those that come in the form of silent holds or other objections that encourage leaders to shelve measures rather than to run them through the cloture gauntlet.
The figure below compiles data on all cloture motions filed in the Senate between 1973 and 2013 and offers a portrait of the rise in the sixty-vote Senate.

A few trends stand out.  First, leaders in the 1970s rarely felt compelled to file for cloture, averaging fewer than one per month in some years.  In recent years, Senate majority leader Harry Reid (D-Nevada) has felt compelled to file for cloture more than once a week.  Second, with the exception of cloture votes taken in 2013, failed cloture votes are more common than successful ones. On average, on cloture votes taken between 1973 and 2012, cloture was invoked roughly 40 percent of the time.  In 2013, majorities secured cloture on three-quarters of the votes, no doubt due to the lowering the cloture threshold via the nuclear option that November.  Before going nuclear in 2013, Democrats achieved cloture about two-thirds of the time; with the cloture threshold for most nominees lowered to 51 votes in the post-nuclear Senate, the majority in 2013 secured cloture nearly every time it tried.  Note, however, that the majority party’s ease of securing cloture on nominations does not appear to have made the minority any more likely to consent to confirmation votes.  Reid still regularly files for cloture to bring nominations to a vote.
On balance, these data suggest a Senate increasingly bound up in parliamentary knots. Republicans pursue all avenues for slowing down the majority.  Democrats counter by exploiting whatever limited means Senate rules afford them.  Not surprisingly, we are left with a Senate unable to deliberate over the big issues of the day, let alone the small ones.