June 24, 2018
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Senate filibuster’s sad, maddening history

Manuel Balce Ceneta | AP
Manuel Balce Ceneta | AP
President Barack Obama and presidential nominee to serve as the first director of the Consumer Financial Protection Bureau, former Ohio Attorney General Richard Cordray are seen in the Rose Garden of the White House in Washington in July 2011.

In the latest successful Republican filibuster threat, Maine’s two senators joined in blocking the confirmation of a new head of the Consumer Financial Protection Bureau — not because they opposed the nominee, but because they wanted changes in the bureau’s structure.

Sen. Susan Collins voted against confirmation. Sen. Olympia Snowe voted “present,” which had the same effect as a “no” vote. She cited her husband’s work relating to student loans, which the agency wold oversee. The 53-48 majority favoring confirmation was seven votes short of the 60 votes needed to cut off debate.

So the new bureau remains headless. The nominee, Richard Cordray, the Ohio attorney general, is widely regarded as fully qualified to lead the much-needed watchdog agency. The Republican minority took the unusual course of rejecting him as a means of opposing the structure of the agency. Both Maine Senators had voted for the Wall Street reform law that created the bureau, supplying the necessary votes to avert a filibuster. Neither one complained about the agency’s structure at the time.

Maine’s senators have broken ranks with their party sometimes on other occasions, but they joined the Republican filibuster on Dec. 6 against the confirmation of Caitlin Halligan for the U.S. Court of Appeals in the District of Columbia. The 54-45 vote was six votes shy of the 60 needed to block the filibuster.

That vote seems to have marked the end of an agreement negotiated in 2005 by the Senate’s so-called “Gang of 14,” which set a standard for opposing judicial nominations only in cases of “extraordinary circumstances.”

At that time, the shoe was on the other foot. It was a Democratic Senate minority that was filibustering 10 conservative appellate court candidates nominated by President George W. Bush. Desperate Senate Republicans threatened to employ the “nuclear option” to change the Senate’s rules to eliminate the use of the filibuster to prevent judicial confirmation votes. Instead of seeking a two-thirds vote required by the Senate rules themselves, the Republicans argued that the Senate had the right to set its own rules and could change them by a simple majority vote. Democrats insisted on a two-thirds vote.

Compromising the showdown looked impossible, but neither Majority Leader Bill Frist nor Minority Leader Harry Reid apparently wanted to do away with the filibuster, since it does serve as a protection for whichever party is in the minority. So each party selected seven members, including both of Maine’s senators on the Republican side. Together they reached an agreement. The seven Democrats would no longer vote with their party in filibustering judicial nominations except in “extraordinary circumstances.” The seven Republicans would break with their party’s leadership and not vote for the “nuclear option.”

The deal held pretty well for a time. Three of the 10 filibustered nominees had already withdrawn. Five of the remaining seven were confirmed. The Gang of 14 continued its role. It met in November 2005 to discuss President Bush’s nomination of Samuel Alito to the Supreme Court. The group reached no conclusion, but when the Alito nomination came up for a vote in January 2006, it provided enough votes for cloture to prevent a filibuster.

Partisan division in the Senate has sharpened since then, and the Gang of 14 is extinct. Sadly, there is little inclination among most of the Republicans to permit simple majority votes. And if they regain control of the Senate, we can expect more of the same from the Democrats. The filibuster lives on. So does gridlock.

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