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As Senate Majority Leader Harry Reid, D-Nev., was about to execute the "nuclear option" -- changing the chamber’s rules to eliminate a 60-vote supermajority for executive nominations -- his office released a graphic designed to show how Senate Republicans had used filibusters to target a disproportionate number of President Barack Obama’s nominees.
The graphic -- which quickly went viral among Democrats using social media -- showed a pie chart with the following caption. "In the history of the United States, 168 presidential nominees have been filibustered, 82 blocked under President Obama, 86 blocked under all the other presidents."
We received numerous requests from readers to take a look at the numbers. So we did.
First, some background. Senators can filibuster, or delay, action either by talking as long as they can on the floor, or by making an objection to party leaders. Such a blockage can be overcome by passing a "cloture" motion with a supermajority of votes. Currently, 60 votes are needed to pass a cloture motion and proceed to a final vote on the matter at hand. (Before 1975, it was 67.)
Reid pursued the "nuclear option" -- called that because it represents a significant break with Senate tradition -- on Nov. 21, 2013. Using a parliamentary maneuver, Reid secured approval to end the minority’s filibuster right in all but extraordinary circumstances for executive-branch nominations and judicial nominations short of the Supreme Court. It passed with 52 Democrats voting in support.
When we asked Reid’s office for their supporting evidence for the graphic, they pointed us to two documents from the Congressional Research Service, the independent research arm of Congress. Collectively, the two documents list every instance in which a presidential nominee was blocked and cloture was attempted.
Looking over the documents, we found that the numbers were essentially right, but that the way the graphic described them was wrong.
The most recent of the two documents, a CRS memo, said, "In brief, out of the 168 cloture motions ever filed (or reconsidered) on nominations, 82 (49 percent) were cloture motions on nominations made since 2009."
This means that the numbers in the graphic -- 82 presidential nominees blocked under Obama and 86 nominees blocked previously -- were described incorrectly. The figures actually represent the number of cloture attempts that had been made, not the people who were nominated .
This matters because some of the nominations resulted in multiple cloture efforts. By our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama’s term, for a total of 147.
Reid’s point is actually a bit stronger using these these revised numbers. Using these figures, blockages under Obama actually accounted for more than half of the total, not less then half. Either way, it's disproportionate by historical standards.
Indeed, when we presented this finding to Reid’s office, they agreed and released an updated version of the graphic. It now reads, "In the history of the United States, there have been 168 filibusters of presidential nominees, 82 filibusters under President Obama, 86 filibusters under all other presidents."
"Point well taken on the number," Reid spokesman Adam Jentleson told PolitiFact. "We have actually been careful to specify that 168 is the number of times a nominee was blocked in our materials. The miswording was unintentional. I don't think the point is any less strong when it is worded as ‘times’ versus ‘nominees.’"
We found another bit of questionable wording in the graphic.
The report’s count of cloture motions started in 1949, when the Senate first allowed cloture to be sought on nominations. That means that only 11 pre-Obama presidents were included in the count, not the 43 whose thumbnail portraits are included in the graphic.
On this one, however, Jentleson said the office was sticking with its wording.
"I see your point there, but still feel comfortable," he said. "The record suggests that filibusters against nominees were rare prior to 1949. If there were data suggesting that there were enough filibusters against nominees prior to 1949 to make the ‘half in the history of the U.S.’ statistic misleading, we would consider incorporating that into our wording going forward. But as it stands, we believe that the record suggests the opposite."
To support the notion that blocked nominations were rare prior to 1949, Reid’s office provided us with the names of just seven nominations that were rejected before 1949, some of whom were nominated more than once. They are: Roger B. Taney, nominated by Andrew Jackson to be Treasury Secretary; Caleb Cushing, nominated by John Tyler to be Treasury Secretary; David Henshaw, nominated by Tyler to be Navy Secretary; James M. Porter nominated by Tyler to be Secretary of War; James S. Green, nominated by Tyler to be Treasury Secretary; Henry Stanbery nominated by Andrew Johnson to be Attorney General; and Charles B. Warren, nominated by Calvin Coolidge to be Attorney General.
None of these appear to have been filibustered, Jentleson said, judging by the relatively short periods between their nomination and their rejection, as well as the fact that each did ultimately get votes.
Reid’s graphic said that "in the history of the United States, 168 presidential nominees have been filibustered, 82 blocked under President Obama, 86 blocked under all the other presidents."
The figures are solidly sourced to the Congressional Research Service, but the graphic’s wording was wrong -- an error that Reid’s office acknowledged after we contacted them, and for which they released a corrected version of the graphic. Meanwhile, the question of how many pre-Obama presidents should be included is a bit murkier. The CRS report doesn’t incorporate data prior to 1949, but there’s evidence that blocked nominations were rare to nonexistent before that.
Since the revised numbers actually increase the accuracy of Reid's underlying point -- that blockages under Obama have accounted for a disproportionate share of those undertaken in United States history -- we rate the claim Mostly True.
Harry Reid, original graphic, Nov. 21, 2013
Harry Reid, revised graphic, Nov. 21, 2013
Congressional Research Service, "Cloture Attempts on Nominations: Data and Historical Development," June 26, 2013
Congressional Research Service, "Nominations with Cloture Motions, 2009 to the present," Nov. 21, 2013
U.S. Senate, historical list of rejected cabinet nominations, accessed Nov. 22, 2013
Email interview with Burdett Loomis, political scientist at the University of Kansas, Nov. 22, 2013
Email interview with Steven Smith, political scientist at Washington University in St. Louis, Nov. 22, 2013
Email interview with Adam Jentleson, spokesman for Harry Reid, Nov. 22, 2013
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