Monday, July 15, 2013

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 112th and 113th 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.

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