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McConnell Loses Filibuster Battle But He's Winning The War

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AP Photo / Harry Hamburg

Where McConnell Lost

Earlier this year McConnell corralled 42 other Republicans to sign a letter pledging to filibuster any nominee to the Consumer Financial Protection Bureau until Democrats weakened its regulatory authority. That threat went up in flames Tuesday as many of those same Republicans voted Tuesday to advance Richard Cordray's nomination -- in exchange for nothing. The vote was 71-29.

Although McConnell and GOP leaders touted the fact that they persuaded Democrats to agree to replace two recess-appointed members to the National Labor Relations Board -- something they have demanded for months -- the real NLRB battle was a proxy for whether the minority could use the threat of a filibuster to force changes to the law that they couldn't achieve through the regular legislative process. Democrats won that battle.

McConnell had also demanded that in exchange for confirming seven nominees, Reid agree to drop his threat to go nuclear down the road. Reid refused, and thanks to a bipartisan effort led by Sen. John McCain (R-AZ), secured enough Republicans to agree to confirm nominees to the seven positions anyway. McConnell downplayed that fact to reporters Tuesday and said McCain, among others, had been "helpful" in averting the nuclear option.

Where McConnell Is Still Winning

At the end of the day, the 60-vote Senate is still the norm. The minority retains the ability to obstruct with no credible nuclear threat when it comes to most matters.

Senate Majority Leader Harry Reid (D-NV) and Democrats proved this week they have the leverage to make sure a president's nominees to executive positions can be confirmed with a 51-vote majority. But in conversations with TPM during recent weeks, pro-reform Democrats and progressives privately conceded that they lack the votes to scale back the minority's veto power over judicial nominations or bills.

President Obama has faced more delays and obstruction on his judicial nominees than any of the last five presidents, according to a recent nonpartisan congressional report. Pro-reform sources say they lack the votes to put an end to filibusters of potential judges, in part because pro-choice Democrats fear that a future GOP president may fill the courts with conservative judges that they'd be powerless to stop from rolling back abortion rights.

When Reid was asked Tuesday afternoon about the fate of three pending nominees to the powerful D.C. Circuit Court of Appeals, he was circumspect.

"We'll take those one at a time. We're talking about executive nominees," he said. "Those are going through the process but we'll see. ... I think there's a good feeling in the Senate."

And legislation can continue to be filibustered by Republicans as a matter of course -- sometimes to be thwarted entirely (such as the DREAM Act of 2010 and gun control legislation of 2013) and sometimes to be used as leverage to extract concessions. That remains a huge redefinition of the Senate minority's power that has reached unprecedented heights under McConnell, and which Democrats still have no answer to.

Under McConnell, the use of the filibuster -- as measured by cloture motions by the majority leader, which are filed under threat of a filibuster -- grew from roughly 70 per Congress to roughly 140 per Congress, according to the official Senate record. It eased to 115 in 2011-2010 after Republicans took control of the House.

Gregory Koger, a political science professor at the University of Miami, explained in a recent article that "obstruction is so institutionalized in the modern Senate that labeling some action a 'filibuster' is like handing out speeding tickets at the Indy 500."

That reality has hardly changed.

About The Author

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Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.