U.S. Senate Rules Reform ? Recap & Look Ahead

Washington, DC – This past January, Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) agreed to a compromise on Senate rules and filibuster reform, stopping short of the meaningful changes sought by the Fix the Senate Now coalition and proposed by reform-minded Senators such as Senator Jeff Merkley (D-OR) and Senator Tom Udall (D-NM). However, even the incremental improvements promised by the compromise agreement have failed to materialize, with Senate obstruction continuing at historic levels.

Senate Majority Leader Harry Reid (D-NV) said on May 23rd, “Despite the agreement we reached in January, Republican obstruction on nominees continues unabated, no different than it was the last Congress.” As a result, Senate Majority Leader Reid has confirmed his intent to move a range of qualified executive branch and judicial nominees forward in July and to explore further rules changes in the U.S. Senate should Senate Republicans’ obstruction of these nominations continue

The Fix the Senate Now applauds the renewed focus on Senate obstruction and supports efforts to restore the Senate to functionality. As USA Today recently editorialized, “[I]n recent years, the Senate has turned the confirmation process into a way to endlessly re-fight elections. As a result, key federal posts and judgeships remain vacant for long stretches, compromising the effectiveness of agencies and the courts. Neither party has clean hands … But now that Senate Republicans are in the minority, they have taken obstructionism to a new level.” 

See below for a recap of why Senate reform is still sorely needed in regards to executive and judicial nominees, as well as an assessment of what’s to come in the weeks ahead:

  • Executive Branch Nominee Obstruction: What used to be sacrosanct – namely the nominations process for Cabinet-level nominees – is now open season for obstructionists in the U.S. Senate. This year has seen the first-ever filibuster of a Secretary of Defense in the Republicans’ obstruction of Chuck Hagel’s nomination earlier this year. Then, in back-to-back days in May, instead of advancing Cabinet nominees Thomas Perez at the Department of Labor and Gina McCarthy at the Environmental Protection Agency (EPA) for a “yes or no” vote on the Senate floor, Senate Republicans relied on unprecedented procedural tricks and partisan obstruction to delay both nominations in Senate committees. Former Massachusetts Republican Governor Jane Swift wrote in a Boston Globe op-ed of the Republican obstruction of McCarthy, “While the Senate has a role in advising and vetting candidates, when everyone agrees on the qualifications and quality of the nominee there is a responsibility to move forward.”

Other executive branch nominee battles include Richard Cordray to the Consumer Financial Protection Bureau (CFPB). Mike Konczal of the Washington Post noted of Republicans Cordray obstruction, “their problem isn’t with Cordray, or with any specific candidate. They just don’t want anybody in the office.” Additionally, Republican obstruction continues to threaten the functionality of the National Labor Relations Board (NLRB). The Senate is likely to take up slate of five bipartisan NLRB nominees later this summer – two of the five seats on the NLRB are currently vacant and the term of another member will expire in August. This means that if Republican Senators continue to block the NLRB nominees without recourse, the NLRB will stop functioning by late August and the nation will be without basic labor law protections. As the Los Angeles Times editorialized, “ in requiring the U.S. Senate to confirm presidential appointments, the Constitution aims to ensure a second level of scrutiny of the qualifications of government officials. But Senate Republicans have hijacked the confirmation process, not only to thwart individual nominees but to undermine laws they don't agree with.”

  • Judicial Nominee Obstruction: In the judicial arena, the New York Times reports that President Obama will soon nominate three judges to the U.S. Court of Appeals for the DC Circuit – which the Times called the “second most important court” in the nation. As Huffington Post explains, the “three vacancies are part of a staffing crisis that has plagued the judiciary, as Obama's nominees have been bottled up in the Senate by GOP obstruction.” According to statistics reported on by The Hill newspaper, “Obama’s judicial nominees have waited between three and four times longer for Senate votes than former President George W. Bush’s picks. Of Bush’s 61 circuit nominees, 35 waited fewer than 30 days for a floor vote, while only one of Obama’s 33 circuit judges has waited less than a month.”

The impending DC Circuit nominations come after Senate Republicans blocked the nomination of Caitlin Halligan to the court earlier this year. Senator Chuck Schumer (D-NY) noted that the Halligan obstruction “represented the demise of the Gang of 14 agreement that this Senate has operated under for the last few years … Republicans now treat judicial filibuster as the rule, not the exception.” Having just passed the anniversary of the Gang of 14 agreement, it’s worth recalling that the agreement’s standard that “Nominees should be filibustered only under extraordinary circumstances,” clearly no longer applies.

  • Mitch McConnell Tries to Undercut Rationale for Reform: During the same week that Senate Majority Leader Reid threatened to revisit rules reform, the Senate confirmed Deputy Solicitor General Sri Srinivasan to the D.C. Circuit Court of Appeals by a 97-0 vote. As Brian Beutler of Talking Points Memo noted, “McConnell is actively trying to undermine Reid’s efforts to present Republicans with a Sophie’s choice between dropping their filibuster threats against nominees they oppose and standing by as Democrats do away with the filibuster on presidential nominees altogether.” Despite the recent confirmation of Srinivasan, his nomination nonetheless serves as a reminder of how Senate obstruction has delayed qualified and non-controversial judicial nominees like Srinivasan from filling vacancies – the seat he is now filling in the D.C. Circuit Court has remained vacant since 2005 and his nomination sat in the Senate for 11 months before receiving unanimous approval.  
  • Pro-Reform Intensity Rising Among Senators: In addition to Senator Reid’s comments and those from longtime pro-reform Senators such as Tom Harkin (D-IA), other Senators have been speaking out with a greater volume and intensity about the need for revisiting Senate reform. For example, Senator Christopher Murphy (D-CT) said earlier this year after the failure of the Machin-Toomey gun background check amendment, that the vote “has turned me from a proponent [of abolishing the filibuster] into a revolutionary…There’s never been a bigger gap between the American public and a Senate vote.” Other Senators such as Barbara Mikulski (D-MD) and William  ‘Mo’ Cowan (D-MA) have similarly been highlighting the need for reform.  Even former Republican Senate Majority Leader Bob Dole recently spoke out against the GOP’s unprecedented obstruction, noting of the filibuster, “There are some cases we can probably justify it, but not many.”
  • Renewed Outside Engagement for Senate Reform: The Fix the Senate Now recently unveiled an ad in the Beltway newspaper Roll Call titled “Break the Logjam.” As the ad notes, today “our government agencies and federal courts are unable to serve the public properly because of unprecedented obstruction of Presidential nominees. President Obama won his election and now deserves an up or down vote on his nominees.” The ad calls on the Democratic majority to “make the Senate work again.” Additionally, the Fix the Senate Now coalition and partner organizations announced a petition drive this spring that has resulted in over 1.1 million emails sent to members highlighting unprecedented Senate obstruction and calling for renewed Senate reforms.  The petition drive led to over 140,000 signatures delivered to Senate leadership offices prior to the Memorial Day recess.  During the Memorial Day recess week, Fix the Senate organizations are planning on nearly two dozen office visits to state and local offices of Senators, calling for an end to ceaseless obstruction and for the Senators to support reforms that again ensure a functional U.S. Senate.

Greg Sargent of the Washington Post captures the dynamics to be on display in the Senate over the weeks ahead: “Republicans will surely play a dangerous game here in which they will try to get away with just as much obstructionism as they possibly can, gambling that Reid ultimately won’t be able to round enough support among Senate Dems (some of whom are reluctant to change the rules by simple majority) to go nuclear. Republicans may be right, and Reid and Dems may not ultimately go through with it. But with tensions now escalating on not one, but two fronts — executive branch and judicial nominations — the possibility of miscalculation, and with it the chance that Dems will have no choice but to change the rules, is likely to grow.”

While the end outcome is unclear, what is already apparent is that the rules reform compromise agreement from January has failed; that frustration with Senate obstruction among the public and Senators alike is understandably rising; and that this obstruction is exacting a toll on basic functioning of the Senate, executive agencies, and the judiciary in a manner unacceptable to our democratic traditions.

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