As Filibuster Fight Mounts; Common Cause Event Examines Hyper-Partisanship

July 11, 2013

by Jeremy Leaming

Sen. Majority Leader Harry Reid (D-Nev.) may be nearing a vote to alter procedures around the filibuster, which Senate Republicans have used over and over again to kill consideration of major legislation and seriously delay or scuttle President Obama’s nominations to the federal bench and to executive branch openings. For that matter, as former Labor Secretary Robert Reich recently wrote the Senate Republicans “have filibustered almost everything, betting that voters will blame Democrats for the dysfunction in the Congress as much as they blame the GOP.”

Reid, according to The New York Times is considering asking his Democratic peers in the Senate to vote to “take the exceptional step of barring the minority party from filibustering presidential appointees.” The report continues, however, that such action would not “affect filibusters of legislation or judicial nominees.” At the moment there are still more than 80 vacancies on the federal bench. The vacancies have hovered at 80 or above for years now. (See JudicialNominations.org for more information about the vacancies.)  

Yesterday, during a Senate Judiciary Committee hearing, Republicans signaled they were preparing to delay or block President’s Obama’s nominees to the U.S. Court of appeals for the District of Columbia Circuit.

Earlier this year Reid, after threatening a similar action on the filibuster, instead entered into an agreement with Minority Leader Mitch McConnell (R-Ky.) that has been widely panned as ineffective.

Reid, from the Senate floor, blasted McConnell for failing to adhere to the modest agreement. “Exactly three weeks after Senator McConnell committed to process nominees consistent with the norms and traditions of the Senate, he led Republicans in an unprecedented filibuster of a highly qualified nominee for Secretary of Defense,” Reid said. “Nothing could be a starker violation of a commitment to return to the norms and traditions of the Senate than launching the first-ever filibuster of a Secretary of Defense.”

Reid ticked off other executive branch and federal agency positions that Republicans are stalling or threatening to block, such as nominations to the National Labor Relations Board (NLRB), the Consumer Financial Protection Bureau, the Environmental Protection Agency and the Department of Labor.

Regarding the NLRB a five-member board which needs a quorum to operate, Reid noted that unless the Senate confirms a package of nominees the president has put forward for the agency charged with protecting workers’ rights will become inoperative ironically around Labor Day. “In the meantime, the term of one of the three remaining NLRB members expires next month. And soon the board will once again be unable to function. Of course, Republicans consider that a victory. In 2011, the senior Senator from South Carolina, Lindsay Graham, said, quote, ‘the NLRB as inoperable could be considered progress.’” (Republicans have been striving to hobble the NLRB and shutter or greatly weaken the Consumer Financial Protection Bureau.)

Reid said McConnell “has failed to live up to his commitments. He has failed to do what he said he would: move nominations by regular order except in extraordinary circumstances. And I refuse to unilaterally surrender my right to respond to this breach of faith.” Reid’s words suggest he may be ready to hold a simple majority vote to slightly change filibuster rules, with Republicans warning that such a move would upend the Senate, making it more dysfunctional, if that’s possible.

During a July 10 event hosted by Common Cause, several panelists, including Norman J. Ornstein, resident scholar at the American Enterprise Institute, noted that since the January agreement Senate Republicans have only escalated their actions to slow, delay or scuttle legislation and nominations. (Last year Common Cause lodged a federal lawsuit, still wending its way through the court system, which challenges the filibuster in some circumstances.)

Ornstein said the main problem was not the filibuster itself, but “a change in the culture and the practice that has flowed primarily from a Republican party that has turned itself from being a classic minority party in the American context into being a parliamentary-style minority. And one even worse than that – not that’s just out to vote in unison, but in fact to block the implementation of laws that have already been passed and enacted. That is something that we have not seen before. I’ve never seen it before in history.”

Nan Aron, president of the Alliance for Justice (AFJ), said the filibuster has at times played a legitimate role, but the Senate is a much different place now. “What’s happening in the Senate is not fiction. It is very real. The abuse of the filibuster has become a threat to the proper functioning of the Senate.” She continued, “Today’s filibusters are just crass politics. They reflect a desire to block the president’s agenda at every turn and feed the insatiable need of a hyper-partisan political base for endless obstruction.”

Reid may be ready to embrace changes to the rules on the filibuster. Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) have long called for changes to the filibuster that put the onus on the minority, forcing it to sustain a filibuster, instead of making the majority powerless to stop one.

When asked by an audience member at the Common Cause event about the chances of Reid actually voting to change procedure, Ornstein said he thought another deal was likely coming, though he did not rule out that change to the filibuster rules could actually happen this time.

“I think there is a better than even chance that, not that there is a credible threat of changing the rules in midstream that we see a kind of deal made. And that deal is probably going to involve somebody being a sacrificial lamb – I’m not sure who, it might be the Secretary of Labor, but where the NLRB moves forward … and maybe two of the D.C. Circuit nominees go through. It wouldn’t surprise me if a deal is cut.”

Both Aron and Larry Cohen, president of the Communications Workers of America, said another deal would be deplorable.

We could know more today when Reid is scheduled to bring some of the president executive branch nominations to the Senate floor for consideration. See video of the Common Cause event below or by visiting AFJ's website.