UPDATE: Senate Dems’ ‘Nuclear Option’ On Filibuster Rules Diverted — For Now
UPDATE: Tuesday morning, the Senate agreed to a compromise that broke the stalemate over the “nuclear option.” In exchange for withdrawing two of the president’s recess nominations — Sharon Block and Richard Griffin to the National Labor Relations Board — and agreeing not to pursue a Senate rule change that would have lowered the required votes to gain cloture on executive appointment filibusters from 60 to 51, the Republicans promised to allow a suite of five of the president’s appointments. Included in the suite is Richard Cordray, who will become the official director of the Consumer Financial Protection Bureau.
The vote to break the filibuster on Cordray came in with 71 votes. “I think it is going to be something that is good for the Senate,” Majority Leader Harry Reid (D-Nev.) said before the Cordray vote. “It is a compromise, and I think we get what we want, they get what they want. Not a bad deal.”
Minority Leader Mitch McConnell (R-Ky.) has not promised to refuse to use the filibuster on future appointments, however, so the “nuclear option” is still on the table.
In the Senate, Majority Leader Harry Reid (D-Nev.) is ratcheting up on his threat to use the “nuclear option” in light of a wall of opposition to the president’s executive branch nominations.
The “nuclear option” would allow the Senate’s majority to lower the number of votes needed to end filibusters on executive appointments from 60 to 51. It seen as the first step toward permanently disenfranchising the minority in the upper house, creating a partisan split among the membership similar to the one seen in the House of Representatives.
“The changes we’re making are very, very minimal. What we’re doing is saying: ‘Look American people, shouldn’t President Obama have somebody working for him that he wants?’” Reid said on Sunday’s “Meet the Press.” “If you want to look at nominations, you know what the Founding Fathers said: ‘Simple majority.’ That’s what we need to do.”
Reid feels that the Republicans have been holding the confirmation process hostage for reasons not germane to the nominations themselves. In June, Sen. Ted Cruz (R-Tex.) promised to hold all State Department nominations until Secretary of State John Kerry appoints an inspector general.
“The position has been vacant for almost 2,000 days. This is a crucial oversight position and should be a priority for an agency facing substantial management challenges,” said Cruz. “Until the president acts, I have notified Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell that I will place a hold on all State Department nominations.”
The White House nominated Steve A. Linick to be inspector general the day after Cruz’s announcement.
Sen. Rand Paul (R-Ky.) has indicated his intent to use the filibuster to delay confirmation of James Comey as director of the FBI unless the agency discloses the nature of its drone use — including fleet size, rules for use and and whether the drones are armed.
“Current congressional Republicans have made no secret of the extraordinary lengths they will go to obstruct the confirmation process,” said Eric Schultz, a White House spokesman. “That unprecedented evasiveness, often about matters decades old or unrelated to the post, slows down the process from beginning to end.”
Most pressingly, the Republicans have been blocking the confirmation of appointments to agencies they oppose politically, such as the Consumer Financial Protection Bureau and the National Labor Relations Board. The NLRB will become unable to function after the term of the board’s chairman, Mark Gaston Pearce, expires in August. Republicans want structural change to the CFPB, which would make the group more accountable to Congress.
Meanwhile, the Bureau of Alcohol, Tobacco, Firearms and Explosives has curtailed its gun control activities in the absence of a permanent director.
A confirmation ‘logjam’
In all, 154 executive branch confirmations are pending in the Senate, as of the writing of this article. Among these pending confirmations are nominees to head the Environmental Protection Agency, the Labor Department and the Export-Import Bank; ambassadors to Italy, the United Nations, Sierra Leone and the United Kingdom; and senior staff members of the departments of State, Housing and Urban Development, Homeland Security, Defense, Commerce and Education.
“Is there anyone out there in the real world that believes that what is going on in the Congress of the United States is good? Our approval rating is lower than North Korea’s. It is really, really dismal,” Reid said.
Despite this, McConnell does not see a problem.
“What is the problem here? The president has had 1,540 of his nominations confirmed, only four defeated. He’s not lost a single member of the cabinet. He’s getting them faster than President Bush was at the same time in his second term,” McConnell said on “Meet the Press,” immediately after Reid. “The majority leader needs to bring these nominees up. Most of them are going to be confirmed.”
McConnell, like many other in the Senate, feels that triggering the “nuclear option” may create a precedent that would make it easy for the Democrats to curtail judicial or legislative filibusters — which Reid has promised not to touch.
Tuesday is D-Day for Reid, who has scheduled procedural votes on several of the president’s more controversial nominees. It is believed that, if the Republicans balk, Reid will trigger the “nuclear option.” Democratic leadership has closed the possibility of debate on these nominees — only an up-or-down vote will be accepted.
The whole of the Senate membership was called to a 6 p.m. meeting on Monday in the Old Senate Chamber to discuss the possible Senate rules changes.
“We need to start talking to each other instead of at each other and see if we can’t resolve this,” McConnell said Sunday. “We have an opportunity to pull back from the brink … I hope we’ll come to our senses and not change the core of the Senate.”
Prodded on by newer Democratic senators who never experienced life in the minority, Reid’s implementation of the “nuclear option” will likely tank the Senate’s ability to pass any legislation this session as animosity between Republicans and Democrats rises. With talks coming up over the budget, the “debt ceiling,” and immigration reform, Senate Democrats may not be able to afford losing Senate Republicans’ support.
In 2005, the bipartisan Gang of 14 prevented the Republican majority from triggering the “nuclear option” for judicial nominees.
“I’m glad we didn’t do it,” McConnell said. “We knew it would be a mistake for the long-term future of the Senate and the country.”
Vetting and the price of ‘being sure’
While 154 pending confirmations is, indeed, a commanding number, all of the holes in the president’s administration cannot be blamed on the Senate. According to the Plum Book — the once-every-four-years reporting of all senior-level non-elected policy and administrative personnel in the United States government — there are 980 senior-level, civilian, non-judicial vacancies in the federal government. Only six belong to the legislative branch. This means that the White House has yet to fill 824 positions in the executive branch and government-owned corporations.
In the Pentagon, for example, this means that there is no personnel chief to manage the 800,000 civilian furloughs or an inspector general to catch the mistakes. In the White House, there is no budget review chief. Health and Human Services is doing without general counsel and the Centers for Medicare and Medicaid Services doesn’t have an administrator. In the Department of Homeland Security, a full one-third of all senior positions are vacant.
Nearly a quarter of the State Department’s top roles are also empty. Many in Congress and elsewhere feel that the problem may lie in the White House’s tedious vetting process, which can take months and has caused a logjam logistically. It is not uncommon for the White House to scrutinize a potential nominee in detail for the past 10 years or more.
“The basic premise was that it was better to over-vet, to get everything on the table early and not give something that could end up becoming a scandal,” said one former administration official who underwent his own examination.
While it is unclear whether the president has filled fewer posts than Bush or Clinton, it is clear that Obama has filled fewer high-profile positions. This is creating a situation in which the government is unable to fully function as it is prescribed to do.
“It’s a weakening of accountability down the chain of command,” said Paul Light, a professor at New York University who has done extensive research on the appointment process. “You don’t have someone there who has full authority to say ‘yes’ or ‘no.’ The whole system tends to grind down to a very slow crawl.”
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