Something has been bothering me since Tuesday. Richard Cordray was allowed to go to a vote because a number of Republicans voted in favor of cloture. So it wasn’t that Cordray wasn’t filibustered, it was just that the Senate voted to end the filibuster. But that had been going on since before the recent deal to avert the nuclear option, so that doesn’t too much matter. Then yesterday, the Senate held another cloture vote on Fred Hochberg, which also got the necessary votes to move on. But it’s still a filibuster, right?
Finally, I got confirmation from the grand wizard of everything filibuster, Jonathan Bernstein, Why the Senate Deal Is Worse Than They Should Do. This is more than just a technicality. The Republicans are still using the filibuster—just not to stop nominations. Instead, they are using it to slow nominations down and eat up the time that the Senate has to deal with other issues. So Tuesday’s deal is not at all that the Republicans will stop their de rigueur filibustering of every executive branch nominee. It is just that they promise not to do it for too long.
Bernstein thinks the current situation is unstable. It requires a constant stream of Republicans to “cross over to the dark side” and vote for cloture. A better idea would be to get Republicans to vote once to change the rules of the Senate to forbid executive branch nominations. The real reason that everyone is so hysterical about the so called nuclear option is not the fact of changing the Senate rules; it is changing them with a simple majority vote. Now I don’t mind that for a couple of reasons. First, I think the filibuster is a bad thing. It adds a highly undemocratic element to an already undemocratic institution. Second, I am certain that the Republicans will use the nuclear option the moment it is to their advantage.
Rather than take all these “difficult” votes on a string of nominees, a few Republicans (6 now and most likely 5 in a couple of months) could just vote for the rule change and that would be that. Or at least that is Bernstein’s notion. But I think that the current Republican behavior shows why this isn’t going to happen. If they can’t stop the nominating process, at least they can slow it down. It is hard to just say, “No more parties!” It is a lot easier for a few Republicans to come in after the obstruction party has been going on for a while and say, “Time to wrap it up!” Bernstein notes that the Republicans would still be able to do their limited filibustering as they are now, it is just that it could be stopped by a simple majority vote. But who’s he kidding? All the Republicans would know why the Democrats had the power to stop their fun.
The current system is unstable. For one thing, it is not clear who the agreement is with. The Senators who vote for cloture seems to be ever changing. But even more so, the Republicans are already showing their tendency to push the extent of the agreement. Soon they will start balking at the slightest controversy in a nominee and they will eventually move to blocking all nominees again. In fact, Marco Rubio as of yesterday—One day after the deal!—called for a full filibuster of the Labor Secretary nominee Thomas Perez:
— Marco Rubio (@marcorubio) July 17, 2013
I’m not hopeful moving forward. Fool me once, twice, three times… After a while, I’m just an asshole.