Nel's New Day

July 16, 2013

GOP Backs Down from the Filibustering

High in the media during the last several days has been the term “nuclear option,” which means a simple majority vote in the Senate to remove the possibility of filibustering presidential nominees. In 1957, Vice-President Richard Nixon wrote the opinion that the U.S. Constitution gives the presiding officer the authority to override Senate rules in this way. After discussion in the majority party, Democrats seem to have the necessary 51 votes, and the GOP decided that they might need to play nice–at least temporarily. The entire Senate met secretly last night with no media present, and the Republicans reluctantly agreed to vote on a confirmation for seven of President Obama’s nominees.

This afternoon, Richard Cordray was confirmed to lead the Consumer Financial Protection Bureau by a vote of 66-34. President Obama nominated him 700 days ago, but Republicans thought that by refusing to confirm any  head for that agency that they could stop the 2010 Dodd-Frank law. Sen. Elizabeth Warren (D-MA), who helped establish the rules that aids consumers in issues such as credit cards and mortgages, was the first person considered for a nomination, but Senate GOP members adamantly opposed her nomination. They may now regret their earlier refusal to consider her because of the power she wields in the Senate.

Other pending nominees are three to serve on the five-member National Labor Relations Board and leaders of  the Labor Department, Environmental Protection Agency, and Export-Import Bank. President Obama had appointed two board members earlier, but the Senate maintained it was illegally done because they had not recessed when they left town. A federal judge decreed the temporary nominations unconstitutional, and the board was again left with only two members.

The current dysfunction of Congress began almost five and a half years ago in the night of President Obama’s first inauguration. Congressional GOP leaders met to plot against the new president, agreeing that they would provide no cooperation or compromise—just continual obstruction.  During that five and a half year period, McConnell consented to stop the blockage but failed to live up to his word.

GOP senators have loudly protested the filibuster when Democrats were in the minority several years ago. Reid’s office has helpfully compiled a video of GOP senators calling for filibuster reform in 2005. For example, former Sen. Jim DeMint (R-SC), now head of the ultra-conservative Heritage Foundation, gave a compelling case for blocking filibusters when he said,   “Now that the American people have clearly spoken by democratically electing a Republican president and a Republican majority in the Senate, 41 senators are attempting to deny the will of the people.”

Sen. Lamar Alexander (R-TN), who voted to filibuster several of President Obama’s judicial nominees, proclaimed, “I would never filibuster any President’s judicial nominee, period.” Sens. Saxby Chambliss (R-GA), Johnny Isakson (R-GA), Tom Coburn (R-OK), John Cornyn (R-TX), Mike Crapo (R-ID), Lindsey Graham (R-SC), Mitch McConnell (R-KY), Jeff Sessions (R- AL), Richard Shelby (R-AL), and John Thune (R-SD) all labeled such filibusters unconstitutional.

After the GOP’s whining about the Democrats’ filibuster, seven Senate Democrats relented and voted to confirm the three nominees. One was Judge Priscilla Owen, who had taken thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court before she reduced Enron’s taxes by $15 million. Another was Judge Janice Rogers Brown, who compared liberalism to “slavery” and court decisions upholding the New Deal to a “socialist revolution.”

In 1949, Senate rules created the current process requiring 60 votes to end a filibuster on a presidential nominee, 36 executive branch nominees have needed this “cloture” vote—almost half of them under President Obama.

According to last night’s agreement, filibusters are permitted for legislative and judicial nominees, but the GOP cannot refuse the president the right to fill key vacancies. Without a director, the Consumer Financial Protection Bureau cannot issue rules and perform other key tasks. Advancement in the climate change agenda is prevented until there is a director for the Environmental Protection Agency. Both workers and employers will be hurt without new members on the National Labor Relations Board with its function of ruling on collective bargaining disagreements between unions and companies.

The agreement last night developed from several developments:

McConnell has abdicated his former position of working compromises with Senate Democratic leaders and has been replaced by Sen. John McCain (R-AZ). McConnell still has the title of minority leader, but McCain appears to be the party’s chief negotiator.

The U.S. Supreme Court has agreed to hear the case about NLRB recess appointments. If SCOTUS supported the president, the GOP could no longer block recess appointments by saying that they didn’t really recess the Senate. Confirming nominees to the board will make the case moot.

Without confirmed members, the NLRB will not function after August 27. This may be part of the reason that Democrats confronted the GOP senators.

The Dems can threaten the nuclear option any time that they want. If the GOP senators start blocking executive-branch nominees, the threat can re-emerge. And it may happen soon.

Although the agreed-upon confirmations should be done before the Congressional August recess, the Senate will need to approve a new Secretary of Homeland Security because Janet Napolitano is leaving and a new commissioner for the Internal Revenue Service, a position empty since November 2012. President Obama will also need to name a new head for the Federal Reserve’s Board of Governors, and the Senate needs to confirm three nominees to the D.C. Court of Appeals, a court second only to the U.S. Supreme Court.

Some senior GOP senators, including McConnell and Sen. Chuck Grassley (R-IA), are sure to block those judicial nominees on the grounds that the court already has a quorum. It’s their position that all President Obama’s judicial appointments need to be blocked so that a future president, in GOP minds a Republican, can continue to load the courts with conservatives. One of the positions has been empty since 2005 when Chief Justice John Roberts left for SCOTUS.

Reid said that he has had to overcome 413 filibusters, and the GOP will probably not stop their games. There may be another secret meeting of senators regarding these and other nominees.

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