Congress seems inclined lately to play the dangerous game of precipice politics. No sooner had it stepped back from the fiscal cliff in 2011 over the debt limit and again on New Year’s Day 2013 over huge tax rate increases and spending cuts, than the Senate found itself two days later, on January 3rd, and then again this month, staring into the abyss of a nuclear winter followed by a nuclear summer over the filibuster rule.
For the uninitiated in Hill-speak, the Senate announced that it has found a way around using the “nuclear option” as a means of securing confirmation for seven presidential appointees. The nuclear option is a term coined back in 2005 when Republicans were in control of the Senate and threatened to change Rule 22, the cloture rule for filibusters. They planned to overturn the ruling of the chair that it takes 60 votes to close debate on judicial nominations. It only takes a simple majority vote to overturn the ruling of the chair. This would effectively outlaw filibusters on federal judges. Rule 22 requires a vote of 60 Senators to end a filibuster and a vote of 67 Senators to end debate on a proposal to change the rules of the Senate.
In 2005, a bipartisan “gang of 14” senators struck an agreement to vote against filibusters on judicial nominees, except in the most extraordinary circumstances. The agreement held, at least for the duration of that 109th Congress.
Flash forward to this January, when a group of Senate Democrats were threatening what they called the “constitutional option” on grounds that under the Constitution, they claim, a majority of the Senate has a right to change its rules at the beginning of a new Congress. While not abolishing filibusters outright, their proposed changes would have made it much easier to shut them down. They were counting on a favorable ruling from the chair (Vice President Biden) supporting their interpretation that rules changes at the beginning of a Congress are not subject to a two-thirds vote to end debate on such changes (an even higher threshold than the three-fifths vote necessary to end filibusters on other matters). Since an appeal from the ruling of the chair is not debatable, they would then uphold the chair’s ruling by a simple majority vote.
Majority Leader Harry Reid and Minority Leader Mitch McConnell brokered a compromise on January 24th (the legislative day of January 3rd to preserve the fiction it was still opening day of the new Congress), that was incorporated in two Senate resolutions -one of which adopted two standing orders (effective only for this Congress), and the other adopting two changes in the Senate’s standing rules.
One of the standing orders creates a special motion to proceed to consider a bill that would be subject to a majority vote (instead of three-fifths ordinarily required by the cloture rule to reach such a vote). The motion would be contingent on a bipartisan agreement guaranteeing consideration of a minimum of four amendments, alternating between the two parties. The other standing order would shorten considerably the debate time for most executive and judicial branch nominations once cloture is invoked by the requisite three-fifths vote.
The two rules changes adopted accelerate the process for taking up a bill or other matter if a cloture motion is filed jointly by the majority and minority leaders and signed by at least seven members of each party; and consolidates the three possible motions for going to conference into a single motion that would be subject to jut two-hours of debate instead of 30 hours.
Finally, Sens. Reid and McConnell struck a “gentlemen’s agreement” that included a pledge that any further changes relating to Senate procedures to be considered in the 113th Congress would, in Sen. Reid’s words, “be subject to a regular order process including consideration by the Rules Committee.”
Notwithstanding that bipartisan compact, Sen. Reid went forward with the threat to exercise the nuclear option this summer, without Rules Committee consideration, with regard to executive nominations on the grounds Republicans had not kept their word to keep their opposition to the president’s nominees to a minimum. In play were four nominations to the National Labor Relations Board (NRLB), and nominees to head-up the Consumer Financial Protection Board, EPA, and the Department of Labor. Republicans have accused Sen. Reid of going back on his word that he would use regular order to consider nominations and said they had kept their opposition to the president’s nominees to a minimum.
Although Sen. Reid was vowing to hold the line at “seven or nothing,” thereby resisting Republican demands to jettison some of the NLRB nominees, a late hours session in the old Senate Chamber Monday night, on the eve of the first of the scheduled cloture votes, plus behind the scenes negotiating by Sen. John McCain, allowed Sen. Reid to announce Tuesday morning that an agreement had been reached to back off from the nuclear option and allow votes on five of the seven nominees. Consummation of the deal would depend on the president agreeing to replace two of his seven NLRB picks.
While the resolution is a great nod toward bipartisanship and collaboration, it is but a temporary solution to a problem that will continue to arise – the ability of the Senate to hold up the president’s appointments. Some reform to the nominations process may be order – such as decreasing the number that need Senate confirmation – but not so much that it changes the Senate into the House – efficient but not deliberative.