Government Reform

'Nuclear Option' Helps Obama Regulatory Agenda

According to The Hill, “the Obama Administration’s second-term regulatory agenda should be an easier lift, thanks to changes to the Senate’s filibuster rules that make it easier to fill key agency positions and install federal judges.”

“But Obama is unlikely to suddenly start making contentious nominations, said Maryland law professor Rena Steinzor, who serves as president of Center for Progressive Reform.”

“Rather, … the new Senate rules would help Obama fill long vacant positions at agencies already reeling from strained resources following this year’s sequester cuts.”

Steinzor: “I don’t expect a bunch of fiery appointments.”

Republicans Can Still Block Obama Nominees

The ‘nuclear option’ did not completely obliterate Senate Republicans’ ability to block judicial nominations, reports The New York Times.

“It left unchanged the Senate’s “blue slip” custom, which allows senators to block nominees to judgeships associated with their states.”

And that’s a potential problem as “all but one [of the 12 vacant appeals court seats] are in states with at least one Republican senator.”

White House counsel, Kathryn Ruemmler: “It is hard to overstate the change’s importance for the D.C. Circuit, which has a disproportionate impact on the world, but it won’t have overwhelming impact elsewhere … The blue slip rule for judges has been more problematic than the filibuster, in part because it is a silent, unaccountable veto.”

'Nuclear Option' Won't Obliterate GOP Obstruction

Now that the ‘nuclear option’ has been invoked, don’t count on smooth sailing for the 231 presidential nominees waiting to be confirmed by the Senate.

Molly Ball explains: “That’s because the filibuster … wasn’t the only bottleneck in the long and convoluted process of getting presidential appointments through the Senate. So while [Harry] Reid chastised Republicans for ‘deny[ing] the president his team,’ President Obama’s bench isn’t likely to be suddenly flooded with new players.”

“Two other big bottlenecks—the administration’s difficulty putting up nominees for red-state judgeships and getting them through committee—remain. And even when those are surmounted, the process will still be lengthy and cumbersome. Nominations may well be the key to Obama’s second-term agenda, but they’re not about to suddenly sail through the Senate.”

Obama Seeks to Shine Light on Dark Money

According to The New York Times, the Obama administration has taken a major step toward greater oversight of political activity by 501(c)4 non-profit organizations.

“New rules proposed by the Treasury Department and the Internal Revenue Service would clarify both how the I.R.S. defines political activity and how much nonprofits are allowed to spend on it. The proposal covers not just television advertising, but bread-and-butter political work like candidate forums and get-out-the-vote drives.”

“Political spending by tax-exempt groups … skyrocketed to more than $300 million in 2012 from less than $5.2 million in 2006, according to the Center for Responsive Politics.”

Although the proposed rules would not prohibit non-profits’ political activity, it would, as a Treasury spokesman explained, be a “first critical step toward creating clear-cut definitions of political activity by tax-exempt social welfare organizations.”

A Perverse Form of 'Minority Rule'

In making a case to abolish the filibuster for legislation (“that’s arguably where the most damage has been done”), Steven Hill details recent Senate filibusters where Democrats tried and failed to obtain the necessary 60 vote. This doesn’t include the cases where Senate Democrats, under threat of a filibuster, didn’t even try to reach the 60 vote threshold.

“There is one other rarely discussed aspect to all this that illustrates why the Senate today, far from being “’he most deliberative body in the world,’ is one afflicted by the most perverse form of ‘minority rule.’ Because of the Senate’s distorted and malapportioned structure, in which every state has two senators regardless of population … the 41 GOP senators who block legislation often represent only about a third of the national population, since Republicans disproportionately represent sparsely-populated states.”

Hill concludes that, in addition to the three ‘kill points’ (The president, House, and Senate) created by the Constitution for rejecting federal legislation, “frequent filibuster abuse has created a fourth kill point: the Senate minority. Since it’s necessary to run the gauntlet and overcome all four kill points to enact a law, it’s no surprise that this has been an historically unproductive Congress.”

House Panels Battle Over NSA Reform

The Hill reports that the two House committees with jurisdiction over the National Security Agency’s surveillance programs — the Permanent Select Committee on the Intelligence and the Judiciary Committee — can’t agree on the path forward for the agency.

“The leaders of the Intelligence Committee want to preserve the NSA’s sweeping powers, while Judiciary members are likely to push legislation that will more aggressively rein it in… The House Intelligence Committee had planned to vote on an NSA reform bill Thursday… But it is now unclear whether leadership has made any decisions about which committee’s bill will receive a floor vote.”

What the Nuclear Option Means for the Economy

Now that Senate Democrats have detonated the “nuclear option” and removed the filibuster for presidential nominees, Matt Yglesias explains what the future may hold and why that matters for the economy.

“I would think ending filibusters for presidential nominees makes it more likely that a future Senate will curb filibustering of legislation… somewhat reducing the massive status quo bias of the U.S. legislative system. That makes basically any big legislative reform—whether it’s a conservative plan to privatize Social Security or a liberal plan to introduce a public option to the Obamacare exchanges—more likely.”

Nuclear Option is 'Rockin' Good News

Andrew Cohen: “There is nothing ‘nuclear’ about permitting a majority of elected officials to do what the Constitution requires and demands that they do: vote on which judges ought to sit on the nation’s benches. What was ‘nuclear’ was the way in which Republican senators these past few months years have refused to vote up or down on judicial nominees who were patently smart, able, dedicated to public service, and ‘mainstream.'”

“The coming era means that Senate Judiciary Committee hearings for federal judges now will be consistently more intense, partisan, and revelatory than they have ever been before.

“This, folks, is rockin’ good news …. [because] judicial nominees should be evaluated more in public on the merits of their work and the arcs of their careers. They should have to reveal more about their judicial ideologies, to the extent they have any.”

Two Contrasting Views of the Nuclear Option

The New York Times editorial board supports invoking the nuclear option: “For five years, Senate Republicans have refused to allow confirmation votes on dozens of perfectly qualified candidates nominated by President Obama for government positions. They tried to nullify entire federal agencies by denying them leaders. They abused Senate rules past the point of tolerance or responsibility. And so they were left enraged and threatening revenge on Thursday when a majority did the only logical thing and stripped away their power to block the president’s nominees.”

“Democrats made the filibuster change with a simple-majority vote, which Republicans insisted was a violation of the rules. There is ample precedent for this kind of change, though it should be used judiciously. Today’s vote was an appropriate use of that power, and it was necessary to turn the Senate back into a functioning legislative body.”

The Washington Post editorial board does not: “The rewriting of filibuster rules by Senate Democrats on Thursday changed the legislative body in fundamental ways, and for the worse. Republicans whose unjustified recalcitrance provoked the change should be ashamed. Democrats who are celebrating will soon enough regret their decision. The radical action, a product of poisonous partisanship, will also be an accelerant of poisonous partisanship.”

“The impact of changing the rules in this way may be even more far-reaching. The Democratic action sets a precedent that a future Republican majority will use to change procedures when it gets into a political jam, rather than negotiate with Democrats. The logical outcome is a Senate operating more like the House, with no rights for the minority, no reason for debate and no incentive to cooperate. For those who view that as an improvement, we offer today’s House as a counterargument.”

Could Filibuster Reform Make Things Worse?

While President Obama is sure to have an easier time getting his nominees through the Senate now that it only takes a simple majority, Jonathan Weisman speculates that the move “could usher in an era of rank partisan warfare beyond even what Americans have seen in the past five years.”

“Republicans may not be able to muster the votes to block Democrats on procedure, but they can force every nomination into days of debate between every procedural vote in the Senate book — of which there will be many. And legislation, at least for now, is still very much subject to the filibuster.”

But the Washington Post sees things differently: “The Senate vote…should make it easier for President Obama to accomplish key second-term priorities, including tougher measures on climate change and financial regulation, that have faced intense opposition from Republicans in Congress.”

Why Harry Reid Needed to Invoke the 'Nuclear Option'

Citing some surprising statistics, Juliet Lapidos explains why Harry Reid ultimately invoked the ‘nuclear option’:

  • Lapidos measures the increase in frequency of filibusters by comparing the number of cloture motions filed to break a filibuster: 68 motions during the 109th Congress, 139 motions in the 110th Congress, 111 motions in the 111th Congress and 115 motions in the 112th Congresss.
  • 3 in 10 of all cloture motions filed in the history of the Senate were filed under Minority Leader, Mitch McConnell’s tenure.
  • Republicans have filibustered a record number of executive branch nominees: 27 under President Obama.
  • For the first time ever, Republicans filibustered a nominee for Secretary of Defense.
  • The average waiting time for non-controversial judicial nominees has increased from 70 days during the Reagan administration, to almost 7 months for Obama.

Reactions to Invoking the Nuclear Option

Jonathan Chait:  “The main reason for this odd, partial clawback of the filibuster is that President Obama has no real legislative agenda that can pass Congress … The executive-branch filibuster [had] become a primary Republican weapon against Obama’s agenda … The D.C. Circuit is where Republicans had hoped to block those parts of Obama’s executive agenda they couldn’t gum up by denying the agencies a functioning director.”

David Kurtz: “It’s what Norm Ornstein is getting at when he told our Sahil Kapur that at some level Mitch McConnell wanted this to happen, and in this way, with Democrats going first so they can be blamed. ‘McConnell’s threat, it seems to me, makes clear the strategy: let Dems take the first step, and we will then bear no blame when we entirely blow up the Senate’s rules after we take all the reins of power.'”

Eugene Robinson:”The real reason is that the Republican political strategy for working with Obama is not to work with him at all … The Senate was designed by the Founders to move slowly, not to be paralyzed. Republican obstruction of presidential appointments makes the government less able to do the people’s work — and less reflective of the people’s will.”

Ezra Klein: Lists nine reasons why the filibuster change is a “huge deal”.

Senate Democrats Invoke Nuclear Option

Senate Democrats “succeeded Thursday in deploying the ‘nuclear option‘ to make the most fundamental change to floor operations in almost four decades Thursday, ending the minority’s ability to kill most presidential nominations by filibuster,” Roll Call reports.

“The Senate voted, 52-48, to effectively change the rules, by rejecting the opinion of the presiding officer that a super majority is required to limit debate, or invoke cloture, on executive branch nominees and those for seats on federal courts short of the Supreme Court.”

Politico: “The unprecedented rules change means that President Barack Obama’s judicial and executive branch nominees no longer need to clear a 60-vote threshold to reach the Senate floor and get an up-or-down vote.”

Think Progress: Why Democrats had to invoke the nuclear option in one chart.