By Mike Dorf
Amidst the justified celebration of the repeal of Don't-Ask-Don't-Tell (DADT), we might pause to marvel at the fact that two Republican Senators--Richard Burr (R-NC) and Ensign (R-NV)--voted against cloture but for repeal. That is unusual, and potentially ominous, in that it suggests that at least for some Senators, the threshold for filibustering a bill is now lower than the threshold for opposing that bill. Should that inversion broadly take hold, it will become even more difficult that it is now for legislation to pass the Senate anytime the President's party has less than 60 votes.
Until the relatively recent past, a filibuster was a rarity. A Senator who opposed a pending bill or a nominee but did not feel that the issue was overwhelmingly important would vote for cloture and then against the bill or nominee on the merits. As we have seen beginning some years ago but with greater frequency during the first two years of Pres. Obama's term, the threshold for a filibuster has lowered to the point at which opposition to a bill or nominee almost automatically translates into opposition to cloture. That is why people now routinely say that it takes 60 votes to get anything done in the Senate.
But it is still quite uncommon to see someone voting no on cloture and then yes on a bill's merits. That combination cannot be explained by measuring intensity of opposition. It must reflect something else. What?
In the case of Senator Burr, we have an explanation. He told reporters that he thought now was not the time to be deciding to repeal DADT because we're fighting two wars, but that once the cloture vote was a done deal, he voted the merits of the policy, which he opposes. Apparently Senator Ensign said something similar. This strikes me as more than a bit peculiar as an explanation. If one thinks that now is not the time to eliminate DADT, then shouldn't one vote against changing the policy now? Don't get me wrong. I'm grateful for Senator Burr's and Senator Ensign's votes on the merits. I just think that there may well be something else going on here.
What is that something else? Here are two possibilities. First, I wonder whether the real timing issue isn't the lame-duck timing. I could see a Republican Senator thinking that any major policy changes should await the swearing in of the new Congress in January. On that ground, one would vote against cloture for just about every non-emergency measure that would likely come out differently in the new Congress. If that's what was really going on with Senators Burr and Ensign, then it strikes me as principled, but small potatoes.
The second possibility is more ominous. We may be entering an era in which Senators (or at least Republican Senators) believe that they owe greater party loyalty on cloture votes than on merits votes. Here the idea would be that once there is cloture, a Senator is free to vote his conscience--or at least his perception of his own interest, rather than strictly the party line. The idea here would be that voting for cloture enables the President and the majority party to claim a political victory, and so party loyalty demands that one vote against cloture whenever one's party leaders want to deny the President's party a victory.
If that's what's going on, then we can foresee near-permanent gridlock, because any time the minority party in the Senate wants to deny the President's party a victory, it only has to insist on party loyalty in the cloture vote. In this cloture "new math," it would take not just 60 votes on an issue to get legislation passed or a nominee approved but a standing 60-vote majority. I don't think we're there yet, but at least on one reading, the DADT pair of Senate votes is a step in that direction.