Senate Majority Leader Harry Reid (D-Nev.) is threatening to change Senate rules to do away with the filibuster for Obama’s non-judicial nominees, something senators refer to as “the nuclear option.” Such a change would enable a simple majority of the Senate, rather than the current 60-vote supermajority, to end a procedural filibuster of the president’s Executive Branch nominees. He’s threatened to do this before, only to back off at the last minute. This time, however, it looks like his patience has run out, and it’s about time.
The Senate Republicans, led by Mitch McConnell (R-Ky.), have repeatedly used the filibuster for almost everything under the sun, including to deny the president his nominees. In an attempt to remedy this, in January, Reid struck a “gentlemen’s agreement” with Mitch McConnell in which McConnell agreed to work faster to process Obama’s nominees in exchange for Reid holding off on the nuclear option. In short order, McConnell and the Republicans broke that agreement, filibustering appointments to lead both the CIA and the Defense Department, despite the ever-present threats to the nation’s security that the Republicans like to remind us about. While both nominees were eventually confirmed, they were unnecessarily delayed, as are a great many other nominations.
Most presidents in recent history have gotten all of their executive branch nominees through with no filibusters at all. But, as can be seen in the chart below, the obstruction President Obama has faced in getting his executive nominees confirmed, as measured by the number of cloture votes taken (to force an end to debate/stalling), almost equals that faced by his 10 predecessors COMBINED.
As a result, many government agencies have been without leadership for months or even years. Without leadership and managers at executive agencies, key decisions don't get made and new initiatives are not implemented, stifling the government’s ability to function. Sometimes, nominees withdraw their names from consideration, having tired of putting their lives on hold while waiting for the Senate to do its job. All this, of course, is exactly what Republicans want.
As of this moment, high-priority governmental bodies such as the National Labor Relations Board (NLRB), the Environmental Protection Agency, Consumer Financial Protection Bureau (CFPB), and the Department of Labor, all lack the leadership or requisite appointments needed to make them function. In an effort to sidestep GOP stalling, last January President Obama used his recess-appointment powers to install Richard Cordray to head up the CFPB, and three members to the NLRB, infuriating Republicans. Because there was some procedural debate over whether the Senate was technically in recess (without which there can be no recess appointment), the issue has gone all the way to the Supreme Court, calling into question the validity of the appointments. The court will take up the matter in its next session. Meanwhile, those nominees, and their ability to do their jobs, are in legal limbo.
Let’s be clear: Even if Reid follows through on his threat this time, Republicans will still be able to give the president headaches. The proposed change reportedly only affects nominees to the executive branch. Judicial nominees will be unaffected, despite the fact that Republicans have made trouble there too. It has been very difficult for certain courts to function properly due to absences on the bench, including the powerful D.C. Circuit Court, which currently has three empty seats.
Those who want to see a more productive Senate were disappointed in Reid and McConnell's attempt to reform the rules at the beginning of this Congress. That measure didn't touch the 60 vote supermajority issue at all, and the minor substantive changes it did make to the rules will expire in 2014. It was, as they say, weak sauce. The American people ran out of patience with Congress a long time ago. Maybe this time, finally, Harry will give 'em hell.