What does Specter’s switch mean for obstructionism?

April 28th, 2009

The big news, only hours old, is that Arlen Specter will become a Democrat. Obviously this has implications for the balance of power in the Senate — though not as significantly so as in 2001 when Jim Jeffords switched from GOP to independent, thereby giving Democrats control of the Senate.

With Specter’s switch in mind, we’ve now got 59 Democrats and 40 Republicans in the Senate. Proclamations that the Democrats now have a filibuster-proof majority are, perhaps, a bit too eager.

There are only 99 senators

First, keep in mind that Al Franken has not yet been seated. A cloture motion needs three-fifths of all sworn-in senators to pass. Three-fifths of 99 is 59.4, which must be rounded up to 60. So even though the Senate is one member short, the cloture threshold remains the same.

Norm Coleman’s legal challenge of the election results will be heard before the Minnesota Supreme Court in early June, and if Coleman plans to appeal to the U.S. Supreme Court, it could be months upon months before Franken is seated.

Pay attention to how Specter’s switch affects the dynamics of that contest. Now that Coleman’s legal challenge is the only road block preventing a 60-seat Democratic caucus, I think two things will happen: more people will start to regard Coleman’s challenge as a game of “keep-away”; and more members of the GOP will want Coleman to treat his challenge that way.

Specter will vote however he pleases

Second, understand that Specter is not an automatic vote for cloture. I know this from today’s statement: “…I will not be an automatic 60th vote for cloture.” The Democrats have never been able to get every single member of their caucus to tow the party line, even on cloture; if they had, there’d be no Democrats on this site with non-zero obstruction rates.

Cloture and passage are different, at least in theory

Third, Specter’s statement reminds me of a distinction I’ve been meaning to illustrate. Consider this paragraph:

My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees Free Choice (Card Check) will not change.

Remember that a cloture motion doesn’t affect the outcome of a bill’s vote on passage. If you’re against a bill, it’s assumed you’ll vote against the motion to invoke cloture. And, yes, that’s usually the case, but not always. We saw that with the Lilly Ledbetter Fair Pay Act, passed this January; 72 senators voted for cloture, but only 61 voted for passage. 11 Republicans (among them John McCain, Mel Martinez, and Lamar Alexander) evidently felt the bill deserved an up-or-down vote, even though they disagreed with it.

Now, for hotly-debated issues like the Employee Free Choice Act, the lines are drawn far more clearly, and Specter knows this. If he voted for cloture even though he opposes the bill, fellow EFCA opposers wouldn’t cut him much slack for his nuanced stand, since the bill would end up getting passed.

I find this dilemma fascinating because I’m a huge dork. I’ll revisit it in a future post.

But, still, it’s a big deal

Anyway, I don’t want to detract from the significance of this event: it’s a huge blow for the GOP, who (at least after Franken gets seated) will have to hold their entire caucus together and pick off at least one Democrat in order to stall legislation. But consider this: we’ve had nine cloture votes so far in the 111th Congress and, unusually, all of them have passed. I think the minority will continue to go through the motions even when they don’t have the numbers.


  1. Troy
    May 5, 2009, 9:33 pm

    “Filibusted points out legislative piracy as it happens.”

    “legislative piracy”? This is just as much “piracy” as is copying software. How lame.

  2. May 5, 2009, 11:01 pm

    The word “filibuster” comes from “freebooter,” or “pirate.” It’s just a turn of phrase.

  3. John
    May 6, 2009, 2:41 am

    How does 59.4 round up to 60? Shouldn’t it round down to 59?

  4. May 6, 2009, 4:46 am

    Technically, it doesn’t round at all. 59/99 is 59.59%, and that’s less than the necessary 60% to pass a cloture motion.

  5. Anonymous
    May 19, 2009, 12:03 am

    But note one thing–Arlen Specter can talk about how he’s all independent all he wants. But he just broke his ties with his base of support–the Republicans. And he did so to avoid a potential difficult primary. All Democrats have to do is threaten him that if he filibusters, they’ll put in a lot of money and effort into his now Democratic primary opponent. If he wants to keep his seat, he’s not going to want to piss the Democrats off too much.

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