With his announcement on July 11 that he would start a process to change the rules to make it easier for the Senate to confirm Obama Administration nominees, Senate Majority Leader Harry Reid (NV-D) had set the stage for a confrontation with Republicans over the Senate filibuster rule for Executive Branch nominations. But on July 16, an eleventh-hour deal averted a floor battle that could have led to the most significant change in the Senate rules since 1975, when the number of votes needed to cut off debate was reduced from 67 to 51.
How the Drama Played Out
Reid had planned to use a controversial tactic ― the so-called “nuclear option” ― to change the rules through a simple majority vote on a ruling declaring filibusters on cabinet or agency nominees invalid. Reid argued that there were 15 such nominees ready to be confirmed after waiting “more than 260 days,” and accused Senate Republicans of turning “advise and consent into deny and obstruct.”
The announcement represented a change of heart for Reid, who had resisted calls for stronger filibuster reform by many of his fellow Democrats at the start of the current session in January, when senators had the option on the first legislative day to change the rules by a simple majority vote. Instead, Reid made a handshake deal with Minority Leader Mitch McConnell (KY-R) that Republicans would have the right to offer amendments on the floor but would limit their use of the filibuster ― an agreement that Reid says has since fallen through.
McConnell maintained that the fight was over “illegal, unconstitutional nominees” that the Administration had put forth, referring to the nominations of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB) and three individuals to serve as members of the National Labor Relations Board (NLRB). Reid had filed cloture motions (to proceed to a vote) on these nominees, along with Thomas Perez to head the Department of Labor and Gina McCarthy to serve as administrator of the Environmental Protection Agency.
President Obama had used a recess appointment process back in January 2012 to install Cordray and the three NLRB nominees in office after their nominations had languished in the Senate; however, the D.C. Circuit Court of Appeals subsequently ruled the NLRB appointments (and presumably, by extension, Cordray’s) invalid on the grounds that the Senate was not technically in recess at the time. (The U.S. Supreme Court will take up the case this fall.)
Cordray’s nomination was also stalled by Senate Republicans’ objections to the CFPB, a new independent agency created by the Dodd−Frank Wall Street Reform and Consumer Protection Act, which they want to restructure by replacing the director with a bipartisan commission.
The backlog of nominees that brought about this latest confrontation might have marked a turning point in Democrats’ threats to make substantive changes in the filibuster rule. Instead, in a deal brokered by Senators Chuck Schumer (NY-D) , John McCain (AZ-D) (who broke with his party on the issue), and others, Republicans agreed to confirmation votes on Perez, McCarthy, and Cordray in exchange for the withdrawal and replacement of two of the NLRB nominees. As a result, within the next several days the three Executive Branch nominees were confirmed for their respective positions.
A Temporary Fix?
The arrangement, which Reid called a “new start for this body,” allowed both sides were able to claim victory ― with the contested nominees surviving the votes and the Republicans preserving their right to filibuster. Reid did not close the door on future use of the nuclear option, however, saying that the Democrats “damn sure” are not giving up “our right to change the rules if necessary.”
For in-depth background on the Senate filibuster, the nuclear option, and confirmation of presidential nominations, see “Filibuster Reform,” Congressional Digest, February 2011, and “Judicial Nominations,” Congressional Digest, May 2005.
