July 17, 2013
Faced with another crisis over one of its least democratic traditions, the U.S. Senate appears to have blown off enough steam to avoid a messy and divisive showdown over the use of the filibuster. Senate Majority Leader Harry Reid and a handful of Republicans, notably Sen. John McCain, tentatively agreed to a deal that will allow several of President Barack Obama's executive branch nominees to receive confirmation votes — a rare but encouraging example of the two parties working together. Ultimately, though, it does not resolve the fate of a procedural tactic that has been abused by both Democrats and Republicans (though somewhat more egregiously by the GOP) to stifle majority rule in a way that hinders the nation's ability to govern itself.
A 71-29 vote shortly before noon to cut off debate on the nomination of former Ohio Attorney General Richard Cordray as head of the Consumer Financial Protection Bureau signaled the acceptance by both sides of an agreement that should stave off use of the so-called "nuclear option" to change Senate rules on filibusters by a simple majority vote. Mr. Cordray's confirmation battle was emblematic of the worst aspects of the GOP's delaying tactics. Republicans did not raise serious objections to Mr. Cordray but rather to the agency he was nominated to head. They lost the legislative fight over the creation of the Consumer Financial Protection Bureau — a key reform after the financial meltdown of 2008 — and they have tried since to render the agency ineffective by preventing confirmation of a permanent director. That's a perversion of the Senate's duty to "advise and consent" on presidential nominations.
The price Republicans extracted for dropping their planned filibusters was for the White House to withdraw its nominees for two slots on the National Labor Relations Board — another agency Republicans were seeking to render ineffectual through abuse of the confirmation process — and replace them with two others. Though the GOP had raised some questions about one of them, former union official Richard Griffin, the main objection to his nomination and that of Sharon Block was the president's use of recess appointments in their cases. Republican senators contend that the president violated the Constitution, and the Supreme Court has agreed to hear the case.
Out of the bargain, Democrats get confirmation votes on several other stalled nominees, most notably Marylander Tom Perez for labor secretary and Gina McCarthy for Environmental Protection Agency administrator. Republicans have objected to Mr. Perez, falsely accusing him of being more of a liberal activist than a public servant. But the root of the problem in his case and Ms. McCarthy's was an objection to the agencies themselves. Ms. McCarthy was being held up by Missouri Sen. Roy Blunt over a dispute about a floodway project in his state that she had nothing to do with.
The agreement comes on the heels of a bipartisan vote on a comprehensive immigration reform bill and provides at least some glimmer of hope that the two parties can work together on big issues, at least in the Senate. Use of the nuclear option, while warranted under the circumstances, likely would have ended any hope of further compromise and dealmaking. The problem with Mr. Reid's nuclear option was that it wasn't nuclear enough; all he wanted to do was to prevent filibusters of executive branch nominees, not to change the rules for judicial nominations or legislation. Republicans would still have been free to gum up the works.
They still will be — and so would the Democrats if and when they lose their majority. As much as this deal is to be celebrated for affirming the principle that the president should have broad latitude to hire whom he likes for top executive branch posts, it does not resolve the problem that the filibuster is now used as a matter of routine to effectively require a 60-vote supermajority for all but the most insignificant legislation.
Mr. Reid and Minority Leader Mitch McConnell agreed to some minor changes to filibuster rules at the beginning of this year's congressional term. But what's really needed is the reform proposed by a group of junior senators last year to return to the "talking filibuster" — that is, to require a filibustering senator to actually hold the floor and not just indicate an intent to block a vote — and to put the onus on the minority party to produce the 41 votes to maintain a filibuster rather than on the majority party to come up with 60 votes to end one. Such a reform is needed if the Senate wants to maintain its tradition of respect for the minority while still fulfilling its constitutional duty.
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