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The Sausage Factory

Senate Republicans Get Rolled

In July, Senate Republicans engaged Senate Majority Leader Harry Reid in a showdown over their filibustering President Obama’s appointments to the National Labor Relations Board (NLRB), but it is hard to see what they accomplished.  Rather than a compromise, it more closely resembled a child handing over his lunch money to the schoolyard bully.  Not only did Republicans fail to protect their right to extended debate in the future but also potentially undermined the power of the body as a whole, because they have possibly mooted the pending Supreme Court case over the President’s unconstitutional abuse of recess appointments.  From now on, we have a new term for the Senate: “nuclear intimidation.”

Before drilling into the significance of this deal, let’s recap a bit about the Senate rules as they relate to the nuclear option. There are three ways the Senate governs itself: 1) the Standing Rules, first passed in 1794 and amended from time to time; 2) Standing Orders, such as unanimous consent agreements made to regulate how debates will be conducted and other orders passed by the Senate; and 3) the precedents of the Senate, which are interpretations of how a standing rule will be applied to a given situation.

Precedents are a critical aspect of Senate procedure. Precedents can be created by a simple majority vote. A precedent can be changed when the presiding officer (usually an acting President pro tempore) makes a new ruling that is upheld by the Senate or makes a ruling that is overturned by the Senate. If the minority disagrees with a particular ruling, it could appeal the presiding officer’s decision. The majority would usually move to table the motion. A motion to table is non-debatable, voted on immediately, and requires only a simple majority to pass. Thus, if the majority of the Senate upholds the ruling, the ruling becomes a new precedent. The opposite is also true. If the majority opposes a ruling, and defeats the motion to table an appeal, the chair’s ruling is rejected, and that rejection becomes the new precedent. Thus, a majority is able to secure its preferred outcome without having to go through the arduous process of changing a rule.

The rule-change-by-precedent-change tactic is not so fondly referred to as the nuclear option. Talk of it has popped up a number of times over the years. The term itself was first used in 2005 when majority Republicans considered the tactic to overcome Democratic filibusters of President Bush’s nominees. Majority Leader Reid actually effected a precedent change in October 2011, when he challenged the right of Senate Republicans to offer an obscure amendment.  The presiding officer, a Democrat acting on the advice of the Senate Parliamentarian (the body’s procedural referee), ruled that the precedent of the Senate was to allow these motions, up until the expiration of the 30 hours of debate that follow a cloture vote. Reid immediately appealed the ruling of the presiding officer and gathered 51 votes to overturn the previous precedent.

At the time, observers were left scratching their heads as to why the Senate Majority Leader would use the nuclear option on a relatively meaningless vote.  Now we know – Reid established a precedent that would pave the way for him to eliminate the filibuster on Executive Branch appointments by a simple majority and without any debate. He explicitly threatened to do so in July and came close to it.  To try to avoid that eventuality, the Senate even had an extraordinarily rare informal meeting, which 98 of the 100 Members attended. The following morning, it was announced that Reid would not follow through with the threat, but the Republicans would stand down on the filibuster of some nominees and President Obama would submit substitute for others.

This is a big deal as far as Presidential appointments are concerned.  Harry Reid threatened the use of the nuclear option to get through several controversial appointments – including the two recess appointees on the National Labor Relations Board – that two U.S. District Courts had ruled unconstitutional.   This is something else we have written about and is an interesting twist in the ongoing, seemingly never-ending plot of our story.

On January 4, 2012, President Obama made two recess appointments to the National Labor Relations Board.  Recess appointments are nothing new, but this was the first time a recess appointment had been made when the Senate did not consider itself in recess. The Senate was on a holiday break and a new session of Congress began on January 3.  The body was holding pro forma sessions, which last only seconds and when work is usually not conducted (although this is not always the case).

The U.S. Court of Appeals for the DC Circuit ruled in January 2013 that these recess appointments the President made were unconstitutional and therefore invalid – potentially reversing every decision made by the NLRB since that point. It also reestablished a constitutional precedent of the congressional recess, possibly preventing future presidents from making recess appointments except in between sessions of Congress. The Obama Administration has a pending appeal to the Supreme Court, which, in June, had agreed to hear the case.

This case is of major importance to the issue of the Senate’s advice and consent powers in the Constitution.  If the President can bypass the Senate and appoint people to various positions in his administration and the courts, by merely declaring that he deems the Senate to be in recess, then the Chamber’s power is dramatically undermined.  The Founders never intended for the Executive to appoint anyone willy-nilly to Federal Government positions without the consent of the Senate.  And they especially did not intend for the President to take federal appointments into his own hands simply because Congress is not conducting business.  The President cannot even reorganize his own Cabinet – indeed even his own Executive Office – without congressional approval.  If the Supreme Court does not rule that this case is moot, it will likely agree with the lower court and rule President Obama’s appointments unconstitutional.

However, as part of the “deal” on Tuesday, July 16, the Republicans agreed to allow the President to withdraw these two illegal nominees and replace them with two individuals who are ideologically the same – and allow them to proceed by simple majority vote.  In other words, the only reason these two fairly radical individuals were placed on the Board through an unconstitutional appointment was because Democrats knew they could not garner 60 votes in the Senate to overcome a filibuster.  Now, the Senate has agreed to approve, by simple majority, two appointees who otherwise would not have made it through the confirmation process in the Senate.

In one great bargain for the Democrats, this arrangements has 1) potentially made the pending Supreme Court case moot, since the appointees are no longer in their job (perhaps it may still be heard if companies challenge the validity of rulings made by the NLRB since they were appointed); 2) eliminated the minority’s ability to force a 60-vote margin on the controversial replacements; and 3) allows the Majority Leader to use his new precedent of nuclear intimidation any time Republicans object to a Presidential nominee.  Republicans gave in on everything and gained precisely nothing.

That may be too generous.  It may be less than nothing.  One day, perhaps as soon as 18 months, the Republicans will be the Senate majority.  And one day, there will be another Republican President.  When the Democrats move to filibuster the new President’s appointments, Senate Democrats will be able to say that they never changed the rules, and demand a 60-vote threshold.  It is highly likely that, had the Republicans forced the issue, Reid may not have been able to get 50 votes to overturn the precedent.  A lot of the Senate’s old bulls remember life in the minority and are not anxious to give up their rights.

The filibuster was worth fighting for, not because it is a tool to make President Obama’s life miserable, as Harry Reid likes to fancy.  The filibuster is important because it is a tool to force bipartisan consensus.  The idea of the filibuster is to prevent a simple majority of Senators from running roughshod over the ranks of a political minority.  Consensus building with, and respect for, the minority distinguishes the Senate from the House, thanks in part to the filibuster.  It means that a majority must seek at least a handful of minority votes to pass legislation – ensuring a broader political consensus on issues.

The Republicans may think they preserved the filibuster in July, but all they did was suspend their rights for a day and leave themselves vulnerable to future nuclear intimidation.  It would have been better to fight it out – then even if they lost, they would have then been in a position to threaten retaliation in January 2015 unless the Reid precedent was overturned.  Today the Senate is much less a bastion that protects the rights of political minorities than it used to be, and that is not good for the future of our democracy.

Mark Strand is the President of the Congressional Institute. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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