Recess Appointments and Administrative Filibusters

Mitchel Sollenberger msollenb at
Fri Jan 6 17:02:45 PST 2012

An accurate count of filibusters over the course of Senate history is most likely impossible. It is difficult, if not impossible, to know when a filibuster has even started. Senators may tell the leadership that they intend to filibuster a nomination or measure through the use of a hold. As a result the nomination or measure then has a hold placed on it based on the threat of a filibuster. The only way to know if a senator will actually filibuster a nomination or measure is to schedule a Senate vote. Senate leadership might anticipate a filibuster and file for cloture before a senator tries to block a vote. If a cloture motion is filed and receives over 60 votes, does that mean there was no filibuster? Even if willing to filibuster, the senator who opposed the nomination or measure cannot any longer block action. Under those conditions it could be argued that a filibuster never occurred but the intent certainly was present. 

My point is that the task of defining what a filibuster is a difficult one which is why the Congressional Research Service only lists the major attempts to obstruct votes in one of its primary reports on the subject. Most academic research on the subject holds similar views. 

The most important, and related, issue is what to do. I agree with Lou Fisher that the Senate leadership should force the minority to actually pull a "Mr. Smith Goes to Washington" but the procedural changes in the 1970s largely prevents that. The two-track system initiated by Majority Leader Mike Mansfeld (D-MT) greatly altered the traditional filibuster to allow legislative business to continue during a filibuster on a nomination or measure. The new two-track system greatly benefited the Senate majority by permitting business to move forward, but it also aided the minority by reducing or eliminating the amount of time they had to hold the Senate floor. The new system created what Catherine Fisk and Erwin Chemerinsky have called the "silent filibuster" which is what most people today find so objectionable. 

Perhaps by ending the two-track system and, as a result, the "silent filibuster" the Senate might start to function in a more useful way for senators, the president, and the public. 


Mitchel A. Sollenberger, Ph.D. 
Assistant Professor of Political Science 
University of Michigan-Dearborn 
Social Science Building, Room 2100 
4901 Evergreen Road 
Dearborn, Michigan 48128 
(313) 583-6714 

----- Original Message -----
From: "Jeff Renz" <Jeff.Renz at> 
To: conlawprof at 
Sent: Friday, January 6, 2012 5:56:22 PM 
Subject: Recess Appointments and Administrative Filibusters 

Are we approaching one of those constitutional crises? The Senate’s increasing use of the administrative filibuster (my term) under which actual debate does not take place has been used to frustrate the executive’s exercise of power regardless of who was President. As Lou Fisher alluded, there is no price to pay for engaging in a filibuster. 

I was told, by a very reliable source in the White House, that President Obama’s initiatives and appointments had been filibustered out of proportion to any of his predecessors. I think that the observation was “as many as all prior presidents combined,” and I treat that as a small exaggeration. 

Does anyone know what the total has been and how it compares? 

If the Congress cannot govern under a rule that requires a super-majority but no accountability for demanding a super-majority, and if the Executive cannot govern by reason of the legislature’s minority exploitation of the legislature’s rule that requires an accountability-free super-majority, how do we find our way out of this mess? 

Jeffrey Renz 

Clinical Professor of Law 

School of Law 

Faculty, Central and Southwest Asian Studies Center 

The University of Montana 

Missoula, MT 59812 


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