To understand Senate Majority Leader Harry Reid’s renewed push for filibuster reform, and Senate Minority Leader Mitch McConnell’s angry reaction to the proposal—he declared that Reid’s “tombstone” would say that he “presided over the end of the Senate”—you have to look at the last four years of Senate dysfunction.
Norms matter as much as rules in governing the conduct of Congress, and the most important norms change of the last decade happened at the beginning of Barack Obama’s first term, when Republicans adopted the filibuster as a routine tool of opposition. Rather than reserve the tactic for consequential or controversial pieces of legislation, Republicans—led by McConnell—invoked it on everything from judicial and executive branch nominations, to small-scale legislation with wide support, like the DREAM Act. By the second year of Obama’s presidency, the Senate had become a super-majoritarian institution, where most business requires 60 votes—the threshold for breaking a filibuster—to proceed.
Liberals, understandably, have been angry about this. Not only did it stymie parts of their agenda in 2009 and 2010—without the filibuster, the Affordable Care Act would have a public option, financial reform would be stronger, and we would (probably) have a cap and trade system in place—but it has harmed the administration’s ability to fill judicial and executive branch vacancies. Indeed, because they can’t block laws like Dodd-Frank or dismantle institutions like the National Labor Relations Board—they don’t have the votes—Republicans have transformed the filibuster into a backdoor tool for nullification. If they can’t get rid of the Consumer Financial Protection Bureau, then they’ll refuse to confirm a director, regardless of his or her qualifications. Without a director, the agency can’t proceed with the bulk of its duties, hampering its effectiveness. Likewise, Republicans have filibustered each of Obama’s nominees to the NLRB, weakening the administration’s ability to enforce labor law.
Earlier this year, a group of Senate liberals—led by Jeff Merkley of Oregon—pressed Reid to do something about the status quo. The chamber was marred by perpetual gridlock, and filibuster reform was the key to moving forward. But Reid was wary of a major change to the rules—to say noting of Merkley’s proposal, which would require 41 votes to maintain a filibuster, and invert the current dynamic. Instead, he cut a “gentlemen’s agreement” with McConnell. The amount of debate time required to end a filibuster would drop from 30 hours to four, but Democrats would still need to muster 60 votes to invoke cloture. What’s more, on district court nominations, only two hours would be needed to move to confirmation after cloture had been invoked, down—again—from 30 hours.
The idea was that this would streamline business in the Senate without making a dramatic change to the rules. The reality is that it didn’t. Almost immediately after the agreement was reached, Republicans returned to blocking qualified nominees for judicial and executive branch vacancies. In February, Republicans threatened to filibuster Chuck Hagel, Obama’s Republican nominee to lead the Pentagon, and in March, a GOP filibuster led President Obama to withdraw Caitlin Halligan’s nomination to the D.C. Circuit Court of Appeals. A few months later, in May, Republicans repeated their promise to block confirmation of Richard Cordray—Obama’s non-controversial nominee to the CFPB—unless Democrats agreed to weaken the agency. And on top of all of this, the Republican majority on the aforementioned appeals court ruled that Obama’s recess appointments—to temporarily appoint Cordray and fill vacancies on the NLRB—were unconstitutional.
Reid’s proposal is a limited fix for one aspect of the filibuster. Instead of ending the rule for all nominations and legislation, he—and 50 other Democrats—would end the filibuster for executive branch nominations. The rationale is straightforward: As the elected representative of the country, the president has the right to choose like-minded individuals for his administration. If Republicans don’t like them, they can try to muster the votes to block them. And if they can’t do that, then tough luck.
McConnell’s reaction to this—expressed in a speech on the Senate floor this morning—was apoplectic. He accuses Democrats of making a “power grab” by trying to confirm “three unconstitutionally appointed nominees by a simple majority vote.” He’s referring to Cordray and the two NLRB candidates—nominees who were previously blocked by McConnell. He says that this isn’t a fight over the filibuster as much as it is a fight over these particular people:
“So this isn’t really a fight over nominees at all. It’s a fight over these illegal, unconstitutional nominees. It’s just laughable to think that Democrats would ever agree to such a thing if we were talking about a Republican President’s unlawful nominees. And it’s equally irrational to think we’d go along with this. In fact, no Senator, regardless of party, should ever consider ceding our Constitutional duties in such a way."
McConnell is only somewhat correct. This isn’t a fight over nominees—it’s a fight over whether Democrats have the right to govern. With the CFPB in particular, Republicans were blocking nominees in an effort to nullify a duly-passed law of the United States. When Obama tried to get around this with a recess appointment—his prerogative under the Constitution—Republican judges on the D.C. Circuit Court ruled it unconstitutional. And when he tried to address the imbalance on the court by filling vacancies, Republicans accused him of court packing.
Do you see the catch–22? Republicans created the conditions for the recess appointments, declared the appointments unconstitutional, and are now castigating Democrats for changing the rules to get those nominees confirmed. And it’s not that these people are unqualified or unsuited to the position. The sole reason for obstruction is that the GOP just doesn’t like the agencies.
Yes, vigorous opposition is an important part of a democracy. Eventually, however, opposition has to give way to governing. And in both chambers of Congress, Republicans refuse to govern, opting instead to wage scorched earth campaigns against laws they couldn’t stop (see: Obamacare).
This is no way to run a country, and for that reason, Reid should follow through on his threat to end the filibuster on executive branch nominees. If afterwards, Republicans are still hell bent on repealing the CFPB and weakening the NLRB, then they’ll have to try a different approach: Actually winning elections.