Nel's New Day

November 23, 2013

Moving Forward without the Filibusters

People are still trying to get over the shock that Democrats would actually take action against the obstructionist GOP and vote for a simple majority vote to confirm the president’s nominees.  After promising earlier this year, not to filibuster all the nominees, the GOP backed down on their agreement, stopping judicial nominees and threatening others. The Democrats had enough and voted 52-48 to remove the possibility of filibuster for all nominees except for the U.S. Supreme Court. Democratic Sens. Mark Pryor (AK), Joe Manchin (WV), and Carl Levin (MI) voted with GOP senators against the rule change.

Out of 168 filibusters on nominations throughout history, 82 of them—49 percent—were during President Obama’s terms. Overall, 189 Obama executive nominees are awaiting confirmation in the Senate, including 85 for Cabinet-level agencies, and their nominations have been pending an average of 140 days, according to White House statistics.

filibuster There are 53 Obama judicial nominations currently moving through the Senate, 17 of which are awaiting votes on the floor. On average, Obama’s nominees waited almost 100 days longer to be confirmed than President George W. Bush’s judicial picks, according to Congressional Research Service data distributed by Senate Democrats.

executive nominees reid

The filibustered candidates were typically more conservative than progressive and therefore acceptable to the GOP. Republican Senators just tried to block all government activity from keeping a shortage of judges on federal courts to nullifying federal agencies by preventing them from having any leaders.

GOP senators have been very open about using the filibuster to block the president’s nominees. In an op-ed published by Fox, Senate Minority Whip John Cornyn (R-TX) admitted that he supports the filibusters because he does not want Democrats to “switch the majority” on the D.C. Circuit. The conservatives went too far: they lost their power to stop any nominees from being confirmed.

The GOP had been increasingly using the filibuster rule to keep courts stacked with conservative judges who would then repeal laws. Two court decisions from the D.C. Circuit Court threatened to shut down the National Labor Relations Board (NLRB) that enforces much of federal labor law. Without the NLRB, employers can use intimidation to keep workers from joining unions, stop bargaining with unions, employ abusive work conditions, and, in fact, fire pro-union workers.

The GOP Senators had other reasons for retaining a majority of conservative judges on the D.C. Circuit Court. The judges struck down environmental regulations that could save tens of thousands of lives, restricted women’s access to birth control, and ruled that employers can legally keep workers ignorant of their rights.

Conservatives throughout the country are going to rant about the Democrats violated the wishes of the founding fathers. They’re wrong. Originally, both the House and the Senate used a simple majority to cut off debate, but the Senate dropped that rule in 1806 when Aaron Burr wanted it done. Yet there was still no filibuster rule in the Senate until until 1917 when President Wilson demanded the rule to overcome “a little group of willful men” opposing his proposal to arm merchant ships. The Senate voted 76-3 for a supermajority (two-thirds vote) for overcoming a filibuster. In 1975, the rule changed to allow just 60 votes to stop a nomination.

These are a few of the changes with a majority rule for confirming nominees:  

  • Regulating Wall Street: Conservative judges typically undermine financial regulation, and the GOP filibusters have been keeping any other judges from getting on the bench.
  • Labor market regulation: The conservative judges on the D.C. Circuit Board struck down President Obama’s recess appointments to the National Labor Relations Board. Removing the filibuster will most likely put three of President Obama’s nominees on this court as an addition to the eight judges, half of them appointed by Republican presidents. Although this sounds balanced, six judges in partial retirement hear a fairly substantial load of cases. Only one of these judges was appointed by a Democrat president.
  • Climate change: The D.C. Circuit also controls decisions for pricing gas emissions externalities under the Clean Air Act regulated by the EPA.
  •  Filibustering Legislation: With this first step, the Senate may curb the consistent filibustering of legislation as well as nominees, opening up votes for legislative reform from privatizing Social Security to adding a public option to the Affordable Care Act.

There has been much hand-wringing  about how much worse the Senate is since the filibuster rule was changed. The comments would be funny if the gridlock had not been so tragic. Since the extremist Republicans took over the House through the election of 2010, Congress has had no major legislative accomplishments. The last three years will be known in history only for one government shutdown and two debt-ceiling crises. The Congressional record can’t drop below the zero number of bills legislated into law.

In a fit of petty pique, the GOP immediately refused to use unanimous consent to confirm a group of low-profile nominees before their next long recess. Observers can expect other GOP delaying tactics such as blocking committees from holding meetings and refusing to attend committee meetings to deny the necessary quorum for moving nominations to the floor. If the GOP chooses, they can demand the possible 30 hours of Senate debate on each appeals court and Cabinet-level nominee. Those below Cabinet level get eight hours, and district court nominees get two hours. That’s an entire day—with no other business—for just one nominee.

GOP senators can also hold up judicial nominations by refusing to submit a “blue slip” okaying the choice. Ten pending judicial nominees have not had a Senate hearing because their home-state Republican senators have not returned their blue slips. In the case of Florida, Marco Rubio urged a nominee who he is now rejecting.

Sen. John McCain (R-AZ)  threatened the ratification of a United Nations-backed disabilities treaty to put most of the world on a par with U.S. policy. Carrying out their revenge plans, the GOP, supposedly public employees, will waste more taxpayer money through their obstruction and inaction. Stalling, however, will show the people in the U.S. that they are deliberately not working, a greater act of sabotage than the filibuster which allowed Republicans to not work and then campaign on the idea that it is government that it not working. When politicians complain about government employees not work, they are looking in a mirror.

The most popular statement in the media is that Democrats will be sorry about their vote to eliminate the filibuster for nominees if (when?) the Republicans control both the Senate and the presidency. This complaint ignores the fact that the a GOP majority in the Senate could easily take the same action that the Democrats did last week. Going to a simple majority now gives the Democrats at least one year, perhaps another two, and hopefully more than that to put reasonable, constitutional judges on the federal bench and keep federal agencies functioning.

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.

January 4, 2012

Iowa Caucus Finished, Obama Makes Recess Appointments

What an interesting caucus in Iowa! Michelle Bachmann is gone, Rick Perry will “reassess” his candidacy on January 21 (or not, depending on the moment), and Rick Santorum (the next “anyone-but-Romney” candidate) lost to Mitt Romney by 8 votes. Romney received six fewer votes than in 2008 when Mike Huckabee got 40 percent of the vote.

Friends of Romney may start focusing their venomous television advertising on Santorum. Jon Huntsman didn’t even try for Iowa votes, and Newt Gingrich keeps plugging along to sell his books. Meanwhile Ron Paul, in third place, might consider running as a third candidate.

The best news of the day, however, is that the Democrats are retaining a spine. Fed up with the Republicans’ constant stalling, aka filibuster, President Obama will keep the National Labor Relations Board (NLRB) functioning by recess-appointing Sharon Block, Richard Griffin, and Terence Flynn to the board. Block and Griffin are Democrats; Flynn is a Republican. Without these appointments the NLRB would lose its three-member quorum, necessary for issuing rules and regulations, because Craig Becker is another recess appointment.

Obama also made a recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau. The CFPB was created as part of the Dodd-Frank financial reform law to enforce a variety of financial consumer protection laws. Without a director, it cannot follow the law’s mandate. Republicans thought that if they blocked this appointment, they could stop the law from taking effect, a process known as nullification.

Cordray was the first state AG to sue a mortgage lender over fraudulent practices and led efforts to rein in payday lenders. The CFPB, according to the law that passed 18 months ago creating the board, is tasked with overseeing lenders and financial institutions to prevent the types of predatory practices such as foreclosure fraud, discriminatory mortgage lending, and practices from payday, student loan, and credit card lenders that cheated and defrauded the American people before and through the recession.

All these positions have been empty for over a year because of the Republicans’ stalling.

As usual, many Republicans are having a fit, claiming that this has never happened before and is unconstitutional. Recess-appointments require a ten-day recess; Congress recessed on December 23. Republican leaders claim that this constitutes no recess. On the other hand, Sen. Scott Brown (R-MA) has said that he approves Obama’s actions because the Washington system is “broken.”

In 1903, President Theodore Roosevelt made more than 160 appointments during a recess of less than one day. President Ronald Reagan averaged three times as many recess appointments as Obama each year, making 243 total appointments during his time in office. Meanwhile, filibusters, a real power grab by conservatives, have increased two-fold since Obama took office, and a large number of votes never occur because of the GOP’s threats to filibuster.

All these appointments are very good news for the nation’s 99 percent!

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