Majority Power Play

AP Photo/Charles Dharapak

Senate Majority Leader Harry Reid

The Senate deal on executive-branch nominations is holding: Not only did the Senate confirm each of the seven nominees for the Consumer Financial Protection Bureau (CFPB) and the National Labor Relations Board (NLRB) that it agreed to during a showdown over the filibuster in mid-July, last Wednesday it even confirmed a director for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)—the first time the Senate has appointed a director to the agency in seven years.

At least for the time being, we have something like simple-majority confirmation for executive-branch nominations: Confirmations still must defeat a filibuster, which requires 60 votes, but the deal appears to be that Republicans will supply at least six of them. So as long as the 54 Democrats in the chamber hold together, a filibuster can be defeated. 

Democrats were able to force that compromise after a series of unprecedented filibusters, including “nullification” filibusters that sought to prevent agencies—the NLRB among them—from functioning by stopping key officials from serving. After four-plus years of this, Majority Leader Harry Reid finally staged a showdown in July. According to reports, 53 of the Senate’s 54 Democrats threatened to eliminate filibusters entirely for executive-branch nominations unless Republicans backed down. Faced with that threat, several members of the GOP agreed to supply the necessary votes to satisfy cloture on nominations for Richard Cordray, the long-delayed first director of the CFPB; several NLRB positions; and a few other long-suffering nominees.

What took senators so long? For one thing, while lawmakers tend to take a position that is consistent with their interests on procedural issues like the filibuster—everyone tends to have a change of heart when the Senate majority changes—senators don’t find it easy to change on a dime. Some will want to avoid charges of flip-flopping; others will simply come to believe the arguments they’d been making while their party was in the minority. So it took some time for Democratic senators who strongly supported the use of the filibuster when they were in the minority from 2003 to 2006 to flip around and attack the practice after they took over the Senate and Barack Obama was elected.

Turnover in the Senate helped; it’s probably not irrelevant that more than half of the current Democratic senators have never served while their party was in the minority in the chamber—they’ve never had to argue in favor of obstruction when Democrats were trying to prevent some of George W. Bush’s nominations from passing. By all accounts, it was senior Democrats—Carl Levin, Dianne Feinstein, and others—who were most reluctant to “go nuclear” and impose majority reform.

That’s still not enough to account for the delay, however. There were occasional filibusters before 2009, and nomination battles have escalated steadily since Democrats defeated John Towers for secretary of Defense in 1989. But the Towers vote was on confirmation, not cloture—and Democrats allowed John Ashcroft to become attorney general in 2001 by a simple majority confirmation vote, no filibuster-defeating cloture required. But beginning in 2009, Republicans suddenly began to enforce a 60-vote standard—in effect, a filibuster—on every nomination. This meant that any time Republicans were unified (other than during the few months in 2009 when they had only 40 senators), they could—and did—stop any nomination they wanted. That had never been the case before, and so it shouldn’t have been all that hard for Democratic senators to come out against it. But it took them more than four years. 

To fully explain the holdup, we need to look beyond the Senate. Barack Obama bears a large part of the responsibility. After all, these are his nominees, and if he wasn’t willing to fight for them, it’s not surprising that Democratic senators made the confirmations a relatively low priority. 

Unlike George W. Bush, Obama didn’t make a major fuss about nomination obstruction. Rather, the president signaled that executive-branch nominees were a relatively low White House priority. He was slow in filling vacancies—most notoriously seats at the Federal Reserve, which sat open for much of his first term. He was also unusually reluctant to use recess appointments to fill vacancies, a trump card that gives presidents leverage to push back against Senate obstruction. (This was before House Republicans forced the Senate to stay “in session” with pro forma meetings in 2011 and before federal courts knocked out the recess power altogether in January, an issue the Supreme Court will resolve in its upcoming term.) Obama’s lack of demonstrated interest in executive-branch nominations is the leading reason Republican obstruction has been successful for so long.

Now that Reid and the Democrats have finally made progress by threatening to impose new rules by a partisan vote, will they extend that to other filibusters, including on judicial nominations and on legislation? 

Unlikely.

On legislation, the filibuster basically doesn’t matter during periods of divided government. A Democrats-only bill will never get through the Republican House; in fact, over the last two sessions of Congress, five to seven Republicans have been the absolute minimum needed to get cloture, in practical terms, for anything to have a chance in the other chamber. 

Because the filibuster will have no immediate effect, Reid and the Democrats probably won’t bother to do anything about it. Confrontations over the basic rules of the Senate are costly—in time, in organizational effort, perhaps in deals to be made if some senators are reluctant to join the rest of the caucus, and in the potential for stirring up resentment within the Senate. As partisan as the Senate seems now, it can always get worse—a single senator can bring things in that chamber to a halt, since a lot of Senate business gets done by unanimous consent. Increased acrimony can have real costs to the majority.

For judicial nominations, filibusters certainly can matter, just as they matter for executive-branch nominations. However, the minority cares a lot more about the ability to defeat the occasional judge than about defeating agency heads. After all, judges have lifetime tenures and face far fewer constraints than executive-branch picks. While agencies can act independently of the president, and can be more or less vigorous, for the most part defeating one nominee will only get you another relatively similar one. Defeat a more liberal judge, and you may get a more moderate replacement; defeat a more liberal secretary of Labor, and you’ll only be getting another nominee who will still mainly carry out what the president wants. Because of this, Republicans will probably be less willing to cut a deal on judicial nominations. The reason the minority party cares about picks for the federal bench is also a reason for the majority not to press quite as hard for reform: Should it become a minority in the future, it will likely care about retaining supermajority requirements for judges. 

So what could make Democrats revisit the filibuster? On legislation, it would probably require either unified government or a belief that unified government (in their favor) is on its way. For judges, it’s likely a matter of degree. If Republicans, for example, do blockade some seats—refusing, for example, to confirm anyone to the D.C. Circuit Court of Appeals—then Democrats may reluctantly threaten again to go nuclear. But an occasional defeat by filibuster hasn’t done it so far, and I suspect it won’t do so in the future.

It’s not so bad that the Senate is slow to react. Stable rules are good for democracies. But it’s also good to see that when norms are destroyed—and Republicans have certainly done that—senators will eventually take action. We’ll just have to see whether the July showdown has taught Republicans that pushing too hard has costs, or whether they will resolve to push even harder on Senate rules and norms in the future. For now, however, it seems possible that the Senate will be a bit more functional. Not great, but not so bad.

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