Why Just Fixing The Filibuster Is Not Enough To Unbreak The Senate

The Senate’s filibuster rules gave the minority party power to shut down all judicial confirmations for much of 2012, and — if a Republican court’s decision eviscerating the recess appointments power is upheld — to effectively repeal two federal agencies. Over 90 percent of the country supports expanding background checks, but the Senate’s filibuster rules allowed a minority of the Senate to kill them.

And yet, even if the filibuster were abolished tomorrow, the the Senate’s broken rules would still provide Senate minorities with numerous opportunities to block progress. Consider the Senate GOP’s treatment of Environmental Protection Agency nominee Gina McCarthy last week:

Because Ms. Boxer’s committee was unable to hold a vote on Ms. McCarthy’s nomination — its rules state that at least two members of the minority party must be present for a quorum — she says she will use her own procedural trick.

It works like this: even if every member of the minority party is absent, committees can hold votes if all members of the majority are present. This has been a problem for Democrats because one committee member in their party, Frank R. Lautenberg of New Jersey, is ill and has not been in Washington in recent weeks.

So Mr. Lautenberg plans to travel to Washington on Thursday to give Democrats the quorum they need to force a vote that pushes Ms. McCarthy’s nomination to the Senate floor.

In case that’s not clear, the minority can bottle up McCarthy’s nomination in committee simply by refusing to show up. In order to defeat this, the majority must rouse a sick, elderly man from his convalescence and ensure that he is physically present in a Senate committee room. And this is what passes for legislative procedure in the world’s most powerful nation.

Senate Republicans used a similarly arcane tactic to delay a committee vote on Labor Secretary nominee Tom Perez last week. Under the Senate’s rules, “when the Senate is in session, no committee of the Senate or any subcommittee thereof may meet, without special leave, after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after two o’clock postmeridian unless consent therefore has been obtained from the majority leader and the minority leader.” Accordingly, Senate Republicans were able to block a committee vote on Perez’s nomination simply because it was scheduled in the afternoon.

Similarly, Sen. Dean Heller (R-NV) unilaterally blocked Judge Elissa Cadish’s nomination to a federal judgeship last March by invoking a Judiciary Committee procedure that allows just one senator to block a judicial nominee so long as that nominee is from their home state. Heller objected to the fact that Cadish accurately described the state of Second Amendment law prior to a Supreme Court decision that made the law more favorable to the NRA’s views.

So, while filibuster reform is essential in the wake of unprecedented obstruction of cabinet-level nominees and similar tactics, it is not sufficient in and of itself. The Senate’s rules and the rules governing its various committees are pervasively broken, and require a complete overhaul to prevent future obstruction.