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What Senate cloture votes tell us about obstruction

- November 12, 2013

U.S. senators, on good behavior. (The Washington Post)
When senators vote against cloture, do they intend to “block” the Senate? This question (posed most recently in a fact-checking column by Glenn Kessler) never goes away, no matter how many times thoughtful observers of the Senate try to lay it to rest.  In the latest round, Kessler gives three Pinnochios to an ad run by Senator Mitch McConnell’s Democratic challenger (Alison Lundergan Grimes) which uses the number of cloture motions filed in the Senate to capture how many times McConnell has “blocked” the Senate.  Kessler cries foul, arguing that cloture motions are a poor proxy for measuring Senate objection.  With some caveats at the margins, I disagree.
Another blog post won’t end debate about how best to interpret Senate cloture votes.  Still, I offer a short expedition into the parliamentary weeds in hopes of producing an even-handed view of Senate procedural politics.  My goals are modest: I want to make plain why majority leaders file cloture motions so often in the contemporary Senate, and I want to explain why cloture motions are imperfect, but not unreasonable, proxies for counting up attempted or threatened obstruction by the minority.  (To be sure, the minority leader can file cloture on a measure opposed by the majority, but McConnell has filed for cloture in just 16 of the more than 450 times cloture motions have been filed since he became minority leader in 2007, 12 of them during the Bush presidency).
So, into the weeds:
When the Senate majority leader wants the Senate to move to a vote on a legislative matter or nomination, he generally has two options.  He can seek the unanimous consent of his colleagues to bring the Senate to a vote.  By definition, even a single senator’s objection (or a threat to do so) blocks the Senate from proceeding to a vote.  In that case, the leader’s only option in most cases involves filing a cloture motion, a move that starts a timetable for bringing the Senate to a vote on cutting off debate (aka voting on cloture).  If 60 senators vote aye, cloture is invoked on the underlying matter and the Senate proceeds to a vote (after 30 hours).   Those are the leaders’ formal options.  (Sounds byzantine? It is. No such parliamentary theatrics bind House party leaders: When the majority party is ready to vote, it moves the “previous question” motion and a simple majority voting “aye” cuts off debate and brings the chamber to a vote.)
These possible paths on the Senate floor — asking for consent or filing for cloture — mask what happens off the floor.  If we could see behind the scenes, we would observe the majority leader seek a unanimous consent agreement (UCA) with the minority.  If successful, the UCA would typically obviate the need for the majority to seek cloture (though UCAs do sometimes provide for cloture votes) and would provide a bipartisan path forward for Senate consideration of a measure or nomination.  In his new book, James Wallner coins the term “structured consent,” observing that UCAs serve the interests of both parties’ leaders.  As Wallner observes, however, if the minority leader decides not to cooperate or is unable to deliver his conference’s consent, the majority leader is left only with the option of seeking cloture.
I think it’s important to recognize that leaders generally prefer consent agreements to cloture motions. UCAs reduce contentiousness and uncertainty on the Senate floor.  In contrast, cloture is a blunt tool for managing the Senate.  Cloture motions don’t ripen for votes until the second day after filing, supermajorities to invoke cloture are often out of reach, and 30 hours of post-cloture time is imposed before the Senate actually votes on the contested matter.  To be sure, invoking cloture on a bill precludes minority party senators from offering “non-germane” amendments, thus reducing uncertainty for the majority party.  But the move also restricts the rights of rank and file members of the majority party.  Cloture is no cure-all, and it succeeds just over half the time.
The parliamentary weeds are important for several reasons:
First, the weeds drive home how the majority leader’s options are limited if the minority decides not to consent to a negotiated agreement.  This is the strongest argument for counting votes against cloture as votes to block the Senate.  If the leaders could have negotiated a path forward, they most likely would have, obviating the need for cloture. For this reason, cloture votes and documented filibusters run roughly in tandem.  Indeed, between 1917 and 1996, the two were correlated at .94 (on a 0 – 1.0 scale).  Moreover, some threats to object convince a time-constrained majority leader to put off filing for cloture; by the time cloture is filed, the opposition has melted away. Senators, for example, unanimously supported cloture on the confirmation of Barbara Keenan to the 4th Circuit Court of Appeals, but only after threats to block her nomination wound down after a four-month wait. In fact-checking the Grimes ad, Kessler objects to counting successful cloture votes as proxies for minority party obstruction.  But the number of votes for cloture is not dispositive.  Here is what we do know in the Keenan and other cases: Absent a GOP threat to object, Reid would likely have sought and secured consent to proceed to a confirmation vote.
Second, the visibility of cloture votes and the invisibility of seeking consent highlight the difficulty of interpreting cloture motions.  Cloture motions leave footprints on the Senate floor, but the foot-dragging or obstruction that compels the leader to file for cloture typically happens out of the public eye.  Opponents of cloture have the methodological upper hand: they can point to aggressive use of cloture by the majority leader, but we can’t see the minority’s resistance that most likely drove the leader to resort to cloture.  (Moreover, senators can place secret holds on nominations and measures they oppose, further limiting our ability to locate roadblocks that stymied the majority.)  In short, we often only know that the minority has objected to proceeding because the majority leader has filed for cloture.
For this reason, it is sometimes tough to interpret the minority’s claim, as noted by Wallner, that Reid sometimes files for cloture before any evidence of obstruction.  Kessler knocks down the Grimes ad on the basis that Reid sometimes files for cloture “even if no one is slowing things down.”  Is Kessler right?  Only cloture motions leave a public mark, so there’s little basis for Kessler’s confidence. More likely, as Steve Smith argues, we are witnessing a new “obstruct-and-restrict syndrome”: resistance by the minority motivates countermoves by the majority, which leads to still more obstruction and more countermoves. One certainty in this sea of parliamentary uncertainty is that the majority leader would likely negotiate a UCA if he could to navigate the procedural thicket.
Ultimately, the rise of the 60-vote Senate in a period of polarized parties signals that the minority party has mastered the art of blocking the majority. Sometimes, the minority leader drives the opposition in his conference; other times, he follows it.  Regardless, what’s true of the tango is also true of the Senate: It takes two parties to make it look good.  The minority party no doubt often feels that the majority leader is too quick to call for a vote, and its members might reasonably oppose cloture on that ground.  However, my sense is that far more often, majority leaders resort to cloture when they find themselves unable to cajole the minority party to cooperate.   As the Senate GOP conference fractures between pragmatists and ideologues, securing GOP consent will likely become even harder.  Counting cloture votes remains an imperfect — but still valid — method of capturing minority efforts to block the Senate.