Sen. Rand Paul, R-Ky., walks to the Senate floor for a vote on the energy bill, at the Capitol in Washington, May 12, 2014.
J. Scott Applewhite/AP

The end of the filibuster? Not quite

Updated

Senate Democrats on Wednesday ushered Sen. Rand Paul off the floor just half an hour after the Kentucky Republican rose in opposition to the nomination of David Barron for an appellate judgeship in Boston. What’s more, they did it with only 52 votes, a feat which would have been impossible as recently as November, when Majority Leader Harry Reid changed Senate rules to lower the cloture threshold on most confirmation votes from 60 to 51.

Does that mean the Senate has put its filibuster troubles behind? Not exactly. On the one hand, it’s now easier to confirm nominees. On the other hand, it takes a lot more time to do so, because Republicans have rebelled against the rules change by invoking endless delaying tactics. The result is that nominations awaiting confirmation continue to stack up.

Ronan Farrow Daily, 5/21/14, 2:08 PM ET

Rand Paul protests nominee over drone policy

Rand Paul took to the Senate floor Wednesday to oppose President Obama’s controversial nomination of David Barron to the U.S. Court of Appeals, because of Barron’s support for drone strikes. The Daily Beast’s Ali Gharib and MSNBC contributor Rula…

As of May 5, according to a recent report by Common Cause, the Senate had 139 nominees pending. At this point in George W. Bush’s and Bill Clinton’s presidencies, the number of nominees awaiting confirmation were 40 and 18, respectively. Bush had a Senate majority, just as Obama has now. Clinton did not, which logically ought to mean he would have had a harder time than Bush or Obama getting his nominees confirmed. But in fact, Clinton had an easier time. That reflects how much minority-party delay tactics have increased since the 1990s.

Reid’s rule change can be credited with securing confirmations for at least fourteen nominees, including Richard Cordray, director of the Consumer Financial Protection Bureau; Melvin Watt, director of the Federal Housing Finance Agency; John Koskinen, commissioner of the Internal Revenue Service; Janet Yellen, chair of the Federal Reserve Board; and three D.C. Circuit judges.

But the process grinds on slowly.

Much of what the Senate does requires a vote of “unanimous consent” to move forward. The minority party can block that by forcing a cloture vote, even when it knows it lacks the necessary 51 votes to block a nominee.

One way to measure the childishness of such maneuvers is to note the disparity between cloture vote and final confirmation. Thirteen times since the rules change, GOP senators have forced a cloture vote on a judicial nominee who ended up winning unanimous approval on confirmation. That means even the person who blocked unanimous consent ended up voting to confirm. For instance, the March 5 vote to end debate on Timothy Brooks, a district court nominee in Arkansas, was 59-41. Under the previous rule, which required 60 votes to break a filibuster, Brooks’ nomination would have halted right there. Under the new rule, 59 votes was more than enough to proceed to a vote on the nomination itself, which passed unanimously. That means all 41 senators who voted to block a confirmation vote—all of them Republicans—deemed Brooks sufficiently qualified to confirm. They just wanted to delay. A mere four Republicans who were going to vote for Brooks anyway voted in favor of cloture.

The Senate has conducted 130 cloture votes during the current Congress, the most in history. The previous record, in 2007-2008, was 112; before then it had never exceeded 61; and before the 1971-1972 Congress it had never exceeded seven. Cloture votes are an imperfect but reasonable proxy for the number of filibusters. We may therefore conclude that the number of filibusters has gone up even though they’ve gotten easier to halt.

That means the Senate majority’s problem has shifted. It used to be that filibusters were too effective: In that previous record-breaking Congress of 2007-2008, nearly half of all cloture votes failed, which meant whatever legislation or nomination was under consideration couldn’t move forward. In the current record-breaking Congress, by contrast, only 24 of 130 cloture votes fell short – meaning about 80% of all filibuster attempts failed. Filibusters have come to resemble stink bugs: easy to kill, but too numerous to tolerate.

Remember, too, that the rule change applied only to nominations (and not even to all of these; Supreme Court nominations are exempt). That means the GOP minority can still defeat legislation with a mere 41 votes. Most of the cloture votes that have occurred since Reid changed the filibuster rule in November have been on nominations; cloture votes on actual bills have been few and far between, because not all that many bills have been brought to the Senate floor. (You may have noticed this isn’t exactly a golden age of law-making.) When bills are brought to the floor, though, they remain child’s play to defeat. Since the start of 2014, nearly half of all cloture votes on legislation, as opposed to nominations, have failed.

When Reid effected the November rule change on filibusters I suggested it didn’t go far enough. Subsequent events would indicate I was right. Republicans have responded with so many endless delays that the Democrats would have nothing to lose by lowering the cloture threshold for everything to 51. Let’s do it.

David Barron, Filibuster, Filibuster Reform and Rand Paul

The end of the filibuster? Not quite

Updated