Rip It Up and Start Again

Democrats were fed up at the start of the year. They had held 59 seats in the Senate for most of the previous two years, their largest majority since the 1970s. But that near-supermajority wasn't enough to overcome a Republican fillibuster. A 60-vote hurdle became a common deathtrap for every Democratic bill or Obama nomination confirmation, leaving the executive branch understaffed and the federal bench depleted.

It looked like Democrats had finally had enough and developed the backbone to fight back when the Senate reconvened in January. There was talk of rewriting Senate rules to end the filibuster. Republicans would have moaned about how Democrats were breaking with all sorts of historical norms, but ending the filibuster falls well within constitutional limits; no previous body can dictate the procedural rules for a future Congress. It never reached that point, though, because Republicans—no longer concerned with progressive legislation originating in Speaker Nancy Pelosi's House—agreed to limit their use of the filibuster in exchange for increased opportunities to offer amendments.

Of course that agreement has not been honored. Any major piece of legislation or important appointment has still required a 60-vote supermajority.

Even worse, the GOP blocked Richard Cordray's nomination to the Consumer Financial Protection Bureau today. This kept Republicans' promise of obstructing any nomination unless the new agency was rewritten so that a five-member board governs the agency instead of a single leader. "They will hold up nominations, well qualified judges aren't getting a vote. I've got assistant secretaries to the Treasury who get held up for no reason," Barack Obama said at a press conference this morning. When questioned, the president refused to rule out a recess appointment, and argued that the GOP should pass legislation rather than hold up nominations if they are dissatisfied with the organization of the CFPB. Republicans have refused to allow the Senate to enter recess over the course of the year to block Obama appointments, though the rules are so loosely defined that the president should be able to appoint Cordray if he is willing to challenge Republicans.

Senate Democrats are turning back to saber rattling as well. They have 21 seats to defend in the 2012 election, compared with just nine for Republicans. Even if it proves to be a good year for liberal politicians and Barack Obama is re-elected, the odds are that their current majority will disappear at the start of 2013. According to Politico, Democrats are threatening to give Republicans a dose of their own medicine if they become the minority party next session. "The standard in the Senate is now being lowered so much so that opposition parties in the future will thwart the will of any administration,” Rhode Island senator Jack Reed told Politico. The White House Counsel backed up that line of thought, calling it "a new era of obstructionism," in the article.

It's good posturing, but an empty threat. The first action taken by new Senate Majority Leader Mitch McConnell in January 2013 would be to abolish the filibuster. Republicans have shown little regard for the norms of the body over the past three years except when it suits their needs. If the GOP maintains a majority in the House and retakes the White House, they will show little patience for any Democratic efforts to block bills. McConnell already gave his argument a test run earlier this year when 51 Democrats overruled the Senate parlementarian to make a slight change in rules. “The rules of the Senate will be effectively changed to lock out the minority party even more,” McConnell said at the time. But it will be the first argument he pulls out to ease the way for the next Republican majority to end the filibuster.


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