The executive nominee deal to avert a Senate rules change is good only in that the controversial "nuclear option" was avoided (and even that is debatable). Most interesting is how the deal was reached.

Senate Minority Leader McConnell (R-KY) thoroughly withdrew from negotiations with Senate Majority Leader Reid (D-NV). McConnell is solely focused on his re-election to the extent that the Senate itself is only, at this moment through 2014 a tool to get re-elected. Taking a pragmatic point of view, who can blame him? Except, McConnell was ready to sacrifice the comity of the Senate for his own political objective and seemingly operated in bad faith.

Credit for averting the nuclear option and reaching a deal on executive nominees rests solely with Sen. Reid and Sen. McCain (R-AZ). But for McCain stepping in and picking up the ball, the rules negotiation would have gone south fast - resulting in the US Senate grinding to a paralyzing halt until after the 2014 elections.

The resulting deal is ridiculous; but better than alternatives. National Labor Relations Board nominees Sharon Block and Richard Griffin are to be withdrawn and replaced with two new nominees that will be brought immediately to the floor without hearings or mark-up. Further, the deal stipulates that "any one at all," may be nominated. This agreement swings the NLRB doors wide open for nominees who are vociferous advocates for labor and workers rights and interests - as it should be as these are a Democratic administration's nominees. Unfortunately, two highly regarded and credible nominees in Block and Griffin get thrown under the bus.

Sen. McCain, by being the deal cutter, just undermined Leader McConnell. Assuredly McConnell is seething over McCain's rogue negotiation but has nobody but himself to blame.

A rare event occurs today as the US Senate convenes in the old Senate chamber in the Capitol. This is hallowed ground, as it was both the Senate chamber from 1818 to 1859 and was the US Supreme Court chamber from 1860 to 1935. This evening the entire US Senate will convene for a private discussion on how to avoid a mid-session rules change. No staff, no press, just Senators talking to Senators about what may be done to avoid a rule change so that President Obama may see his nominees for various positions come to the floor of the Senate for a vote.

The odds favor a deal of some sort to prevent a controversial rule change vote. The rule change being considered would prevent the use of the filibuster to block executive branch nominees. For some this is unchartered territory. For others it is routine. The reality is it is politics as usual with the added drama of very high stakes.

On the Democratic side there is understandable frustration. From the founding of the US government until 2008 only 20 executive nominees have been filibustered. Since 2008 (the beginning of President Obama’s term) sixteen executive nominees have been filibustered. Further, on 18 separate occasions since 1977 the Senate has changed its rules mid-session. Recent Senate Republican obstruction on presidential nominees has persisted, despite two efforts (January 2011 and 2013 at the start of the 112^th and 113^th Congress respectively) by US Senate Majority Leader Harry Reid (D-NV) to observe Senate comity by agreeing to handshake deals with US Senate Minority Leader Mitch McConnell (R-KY) to improve the pace of Senate business. Those handshake agreements did not lead to comity, but further obstruction. Senate Republican conduct points clearly to an effort to dissemble government by obstructing its operations rather than passing new laws.

The Republican response has been to point to the many Obama Administration executive nominees that have been approved (1560). Senate Republicans also make the case that to change the rules mid-session will demean the Senate and make it more like the US House where the minority has no voice. These are sensible arguments until one considers Senator McConnell’s 2005 statement that he is the “proud guardian or gridlock.”

Much of this debate centers on executive nominees to the Department of Labor, National Labor Relations Board, Board of Consumer Financial Protection and the Environmental Protection Agency. When one considers the numerous anti-National Labor Relations Board message bills that have passed in vain in the House, and the Senate Republican efforts to block NLRB nominees, it appears beyond a reasonable doubt that Republicans are intent on circumventing laws they dislike by using the filibuster to derail the wheels of government.

This all now builds to a crescendo in the old Senate chamber this evening when a rules change is either averted via a deal, or the Senate moves to a vote on a rule change using the constitutional option so that a simple majority (as opposed to a 67 vote threshold) is enough to change the rules.

A very real possible outcome, knowing that Senator McConnell is vigorously fighting a rule change is that a deal will not be reached. A rule change is the best political product for Senator McConnell. Senator Reid and the Senate Democrats changing the rules with as little as 51 votes allows McConnell to bring Washington into his re-election campaign (so he can campaign against President Obama and Democrats in the Senate), increase his fundraising haul from corporate interests and change the rules as he sees fit when the day arrives that he is Senate Majority Leader.

Senator Reid cannot now turn back and not see a rule change through. He is so far out on a limb on this issue that he’s left standing on the most fragile leaf. Reid has threatened a rule change too many times, and settled for two bad handshake deals that he now cannot settle for anything less than an outcome that guarantees executive nominees coming to the Senate floor for a vote.

While a deal is still the most likely outcome of the Senate conclave this evening in order to preserve Senate comity, ultimately the outcome must be for these executive nominees to advance. Anything less means the US Senate will grind to a halt until it is reorganized by the 2014 elections.

It is important to note that Senator Lisa Murkowski (R-AK) voted affirmatively to pass all National Labor Relations Board nominees out of the Senate Health, Education, Labor and Pensions Committee. Her five yes votes in yesterday's committee mark-up included Richard Griffin and Sharon Block, the two nominees that met Republican resistance. No other Republican Senator on the HELP Committee voted in favor of Griffin or Block.

Sen. Murkowski should be recognized and appreciated for her principled vote. Alaska's senior senator has previously stated that presidential nominees should be brought to the floor of the Senate. Sen. Murkowski may well oppose the nominations of Griffin and Block on the floor of the Senate, but her exemplary courage and high standard in the HELP NLRB nominee mark-up only emphasizes the lack of the same within the Republican Senate Conference.

Tomorrow the Senate Health, Educations, Labor and Pensions Committee will mark-up nominees to the National Labor Relations Board. The nominees are Democrats Mark Gaston Pearce (current NLRB chairman being renominated), Richard Griffin and Sharon Block (both recess appointments) and Republicans Harry Johnson and Philip Miscimarra. All are highly qualified nominees.  The likeliest outcome is that the nominees will be reported out of committee on a party-line vote.

These nominations have been tainted by rulings by both the DC (Noel Canning v. NLRB) and Third (NLRB v. Vista Nursing and Rehabilitation) circuit courts. In both instances the circuit courts ruled that the intrasession recess appointments of Griffin and Block were unconstitutional. Republicans, namely Senator Lamar Alexander (R-TN) have rejected the validity of two of the three current NLRB board members (again, Griffin and Block) due to the circuit court decisions, adding that both should have stepped down from the NLRB after those decisions so as to properly recognize the courts’ rulings.

A realistic assessment of Sen. Alexander’s position is that it is not one based on principle, but instead is one of expediency and obstruction. Senate Republicans largely desire to use procedure to depose the NLRB so that is unable to function in its role to resolve disputes between labor and management.

Prior to the DC and Third circuit court decisions the precedent had been established that recess appointments are constitutional. The precedent rests with three previous circuit courts opinions: US v. Allocco in 1962 where the Second Circuit Court affirmed intersession recess appointments; US v. Woodley in 1980 where the Ninth Circuit Court did the same; and Evans v. Stephens in 2004 where the Eleventh Circuit Court affirmed intrasession recess appointments.

In 2004 President George W. Bush made an intrasession recess appointment of William H. Pryor to a judgeship on the 11^th Circuit Court. In that ensuing decision contemplated the court’s legitimacy given the intrasession appointment of Judge Pryor, the 11^th Circuit Court found that the appointment was legitimate to “assure proper functioning of the government,” and that recess appointments “extend to the intrasession and intersession.”

Notably, Sen. Alexander was in office at the time (2004) and never raised any concern about the constitutionality of the Pryor intrasession recess appointment as is now his position on the NLRB recess appointments.

Further, in NLRB v. Laurel Baye Healthcare of Lake Lanier, Inc. the Fourth Circuit Court found that having only two sitting members of a board of five was not a quorum and therefore NLRB decisions reached with less than a quorum were invalid. Regardless, the NLRB with a board membership of two continued to issue decisions. At no time thereafter did Sen. Alexander raise any concern about the NLRB’s validity until recently introducing a bill to address the issue while the current NLRB nominations are pending.

Tomorrow at the HELP Committee mark-up Sen. Alexander will protest two of the five nominees for the reasons above and vote against those nominations in committee. With Minority Leader Mitch McConnell (R-KY) already demanding that the Griffin and Block nominations be withdrawn by the White House it is clear that Senate Republicans are intent on disabling the NLRB so as to leave American employees and employers without the ability collectively bargain, or the ability to address certain unfair private sector labor and management practices -- for the first time in 78 years!

Rather than attempt to repeal the National Labor Relations Act of 1935 outright (and face the controversy that would follow), the Republican Senate conference is using procedure to disable the only recourse labor and management have to resolve disputes, to the benefit of management. These tactics, while likely effective, do not pass the smell test.

The major reforms to Senate Rule XXII sought by progressives are not to be. Instead the likeliest reforms to occur on this as soon as today will be along the lines of the Levin-McCain proposal. The odds favor this bipartisan reform package and thus should be done with the 67 votes required by Senate Rule V (but not the Constitution). Majority Leader Harry Reid (D-NV) is unlikely to use the Constitutional Option (or Nuclear Option of passing a rule change with less than 67 votes, but with more than a majority).

 

The significance of this is that the Senate should be less burdened by minority obstruction of procedure. This is a good sign for future negotiations around debt ceiling, sequester and a budget, as well as Senate legislation generally.

 

Expect reforms to: limit debate on the motion to proceed (the easiest path to obstruction); allow minority amendments (the minority being able to offer amendments, or alternatively the majority being unable to fill the amendment tree in some instances), a reduction in post-cloture debate; and a streamlining of the conference process (collapsing motions to insist, request and appoint into one non-divisible motion).

 

All that said, these reforms are window dressing as they will be enacted as a Standing Order that expires at the end of the 113th Senate. As important to realize, so one does not become giddy at the prospect of legislative momentum in the Senate, is that all of these reforms are at the prerogative of the Senate Majority Leader and does not in reality change the status quo. Pragmatically Sen. Reid will be reluctant to allow Minority Leader Mitch McConnell (R-KY) to offer amendments, which in turn allows the Motion to Proceed to be debatable (and thus filibuster-able).

 

This is a very good sign in respect to the comity of the Senate and could lead to constructive deliberation. Yet there remains immense potential that the Senate falls back into the obstructionist traits that have defined it the last four years.

Without Democratic votes the House Republican Leadership's debt ceiling suspension bill, 'No Budget, No Pay' would not have passed. Of the 233 House GOPers, only 200 voted Yea, requiring 18 Democratic votes to pass this legislation. Speaker Boehner indeed got a majority of the majority, but 33 Republicans reneged, potentially leaving Republican leadership with their six hanging in the wind.

This vote speaks volumes about future budget negotiations, sequester and the next debt ceiling clash in May and how the Republican House Conference may be expected to perform if its leadership does not meet its conservative litmus test (defined by its lack of definition; they'll know it when they see it) on mandatory and discretionary spending.

Correction: 199 GOP yes votes; 86 Dem yes votes.

The House Republican Leadership’s debt ceiling suspension vote today is politically savvy but is a legislative stunt. Speaker John Boehner (R-OH) has only accomplished in furthering his obligation to the most conservative in his conference. At the slightest hint that the deal that results from this suspension does not pass the conservative litmus test there will be revolt.

 

This bill is a legislative stunt in contrast with the House GOP conference’s desire to return to regular order. This bill was not spawned from regular order; there were no committee meetings. This is a bill handed down by House Republican leadership without debate, including the unlikelihood of an open rule when the bill comes to the floor.

 

House conservatives will likely vote for this debt ceiling suspension bill today so Speaker Boehner is likely to get a majority of the majority. Approving this bill places conservatives in a position to walk away from their leadership if the legislative process works its way to a compromise with the US Senate that they find unacceptable. This was on full display yesterday when Rep. David Schweikert (R-AZ) said, “We’ll always play great with the team when we’re doing what’s conservative.” Further, this vote today will embolden House conservatives to shutdown the federal government in February.

 

As to sequester, House conservatives have realigned their line in the sand away from preserving defense spending and placed it squarely on the $974 billion in sequester spending cuts with the intent to have a balanced budget in ten years. So conservatives are ready to re-sequence spending cuts as long as the cuts equal $974 billion; this demonstrates a willingness to make defense cuts but likely would require budget cuts to mandatory spending.

 

There remain House conservatives wary of today’s debt ceiling suspension vote but on the whole conservatives see this as a vote they must take in order to apply pressure on their leadership later.