Senate Democrats are committing filibuster fraud, presenting one set of legislative books to the public while trying to hide the real ones. They are padding the “filibuster” numbers so they can bemoan a non-existent crisis and then — wait for it — claim they have no choice but to abolish the filibuster altogether. This is the legislative version of the guy who kills his parents and begs for the court’s mercy because he’s an orphan.
We’ve been around this block before. In 2013, Sen. Orrin Hatch, R-Utah, coined the phrase “filibuster fraud” as he exposed the same scheme by Democrats to cook the filibuster books so they could abolish the practice for nominations. He spoke about it repeatedly on the Senate floor explaining just how the fraud works (see here, here, here, and here).
In short, the Senate cannot vote on passing a bill before ending debate on it. It’s important to note that “debate” here isn’t a verb and doesn’t necessarily mean that senators are actually speaking on the floor about the bill. Instead, it’s simply the label for the stage in the legislative process when a bill is the Senate’s pending business.
Bringing that stage to a close so that the bill can move on can happen informally, with the two-party leaders agreeing on scheduling a final vote. If that “unanimous consent” isn’t possible, though, the Senate’s Rule 22 provides a formal process for invoking cloture (or ending debate).
The cloture process has two steps. The first is a cloture motion, which asks: “Is it the sense of the Senate that the debate [on a pending matter] shall be brought to a close?”
The second step is a vote on the cloture motion to answer that question. Sixty votes and the bill moves forward; fewer than 60 and the bill stalls. The familiar term for when a cloture vote falls short is a filibuster.
The filibuster devil is in the cloture details. To repeat: a filibuster occurs when a cloture vote fails, and thus when the Senate refuses to bring debate to a close. Asking whether to end debate by filing a cloture motion is not a filibuster. Ending debate by a successful cloture vote is not a filibuster. Only a failed attempt to invoke cloture is a filibuster.
The party in the Senate minority typically likes the filibuster. Indeed, both parties have used it to their advantage on legislative matters covering numerous issues. Similarly, the majority resents the filibuster and often complains about it.
Filibuster fraud occurs when the majority falsely inflates filibuster numbers to create a fake crisis. In 2013, for example, Democrats claimed that Republicans had rendered the confirmation process “unworkable” by filibustering scores of President Barack Obama’s judicial nominations.
It turns out Democrats were counting cloture motions rather than filibusters. During the first five years of Obama’s administration, 63 cloture motions were filed on judicial nominations; the Senate voted on 19 of them, and seven of those votes failed. Pretty slick, right? There were nine times as many cloture motions as filibusters during those five years, so Democrats just used the higher number and called those filibusters, figuring no one would be the wiser.
Filibuster fraud is not only dishonest, but it produces some absurd results. Historically, nearly one-quarter of cloture motions are withdrawn without any vote at all, so the fraud also counts as filibusters cloture motions that no longer exist. Since most cloture votes pass, the fraud also claims filibusters are accumulating even when debate actually stops.
The White House and Senate today are again in Democratic Party hands, and they’re pulling the same filibuster fraud once more. At his March 25 press event, for example, President Joe Biden claimed there had been 58 “motions to break a filibuster” between 1917 and 1971. That’s an arbitrary period to pick, and Biden did not explain why he stopped in 1971, but data from the Senate website show that 58 is the number of cloture motions filed during that period.
Again, these are motions or requests to end debate, not to break filibusters. There is no filibuster to break until a cloture vote is taken, and that cloture vote fails.
Biden then said: “Last year alone, there were five times that many. So [the filibuster is] being abused in a gigantic way.” Since the filibuster is used by the minority and Democrats were in the minority last year, Biden was apparently accusing Democrats of gigantic filibuster abuse. But his “facts” were wrong in all sorts of ways.
First, even by the most lose and fraudulent counting, a total of 120 cloture motions were filed last year, not 290 as Biden claimed. Of those 120 cloture motions, 99 were filed on nominations. Since Democrats had already made nomination filibusters impossible, those don’t count anyway.
Of the remaining 21 cloture motions on legislation, 19 resulted in cloture votes, but only nine of those cloture votes failed. I am not aware of any definition of either “gigantic” or “abuse” that would make nine filibusters in one year any sort of problem whatsoever.
Why all this sleight-of-hand? Biden himself had the answer in 2005 when, as a senator, he said that getting rid of the filibuster would be “a power grab by the majority party.”