Democrats Rein In Senate Filibusters
November 22, 2013
The Wall Street Journal
Janet Hook and Kristina Peterson
A bitterly divided Senate voted Thursday to eliminate filibusters for most presidential nominees, a momentous and politically risky step that limits the ability of Republicans to block President Barack Obama's choices for executive-branch and most judicial posts.
The change gives Mr. Obama more flexibility to shape the federal judiciary and to staff his administration for the remaining years of his presidency. But it could hand more power to Republicans if the GOP should win the White House and control of the Senate.
The immediate impact is to clear the way for the Senate to approve stalled Obama nominations, including three for the U.S. Court of Appeals for the District of Columbia Circuit—an influential court that handled legal challenges to Obama priorities, such as the Dodd-Frank financial-services law, and which likely would consider impending greenhouse-gas rules.
Democrats also are expected to move the stalled nomination of Democratic Rep. Mel Watt of North Carolina to head the agency that oversees Fannie Mae FNMA +5.99% and Freddie Mac, FMCC +4.37% the mortgage giants the administration wants to overhaul.
The rule change allows nominations to proceed with a simple majority, or 51 votes when all senators are present, down from the three-fifths threshold, generally 60 votes, that had long applied when opponents filibustered—or threatened to talk at length. The change would apply to all executive-branch and most judicial nominations, but not to nominations to the Supreme Court or to legislation.
So far, 79 Obama nominees have faced at least one vote to end debate, known as cloture, which is usually held to end a filibuster. That is more than double the 38 picks of President George W. Bush in the eight years of his presidency.
Measured another way, the trend on confirmations is less clear.
A May report from the Congressional Research Service said Mr. Obama won Senate approval for 30 of his 42 federal court nominations, compared with Mr. Bush's record of 35 approvals from 52 nominations.
Senate Majority Leader Harry Reid (D., Nev.) engineered the rules change, over Republican objections, with a complicated parliamentary maneuver so controversial that it is often called the "nuclear option."
"The American people believe Congress is broken. The American people believe the Senate is broken,'' said Mr. Reid. "It's time to change the Senate before this institution becomes obsolete."
The result, a major change in how the Senate has operated for decades, is the culmination of accelerating partisanship in Washington and mounting frustration among Democrats in the face of GOP delaying tactics during the Obama years. The rule change could alter the balance of power in the current Congress by stripping Republicans of a lever for extracting concessions from Democrats.
In the future, if the same party controlled the White House and the Senate, as Democrats do now, presidents would have greater latitude to pick more-ideological nominees because they will not have to build support among the minority party.
Some conservatives welcomed the prospect that the change could give Republicans similar maneuvering room in the future. Some doubted that Supreme Court nominations and legislation would remain exempted from the new rule, even though Mr. Reid said the 60-vote threshold would continue to apply.
The vote was a landmark moment for the Senate, a tradition-bound institution that is slow to change and prides itself on giving power to the minority party. Dozens of senators were seated at their desks as the day's proceedings began, a rarity.
The key midday vote was 52-48, with all but three Democrats—Sens. Carl Levin of Michigan, Mark Pryor of Arkansas and Joe Manchin of West Virginia—voting for the change and all 45 Republicans opposed.
Speaking at the White House, Mr. Obama said he supported the Senate action, which he said was an appropriate response to an "unprecedented" level of obstruction by Senate Republicans.
"I realize that neither party has been blameless for these tactics. They developed over the years," Mr. Obama said. But he said Republicans recently have gone too far, calling it a "deliberate and determined effort to obstruct everything, no matter what the merits, just to re-fight the results of an election."
Republicans saw the maneuver as a political ploy to enhance Democratic power through tactics they had opposed when they were in the minority, and to distract attention from the botched rollout of the 2010 health-care law.
"This is nothing more than a power grab to advance the Obama administration's regulatory agenda," said Republican Leader Mitch McConnell (R., Ky.).
Mr. McConnell declined to say whether he would try to reverse the rules change if Republicans gained control of the Senate. But he pointed to the raised stakes for the parties in 2014. "The solution to this problem is in an election," he said.
Meanwhile, Republicans warned that Democrats had crushed any vestige of goodwill that might have produced bipartisan cooperation in other areas, such as the budget and immigration overhaul. "It puts a chill on the entire United States Senate," Sen. John McCain (R., Ariz.) told reporters. "It puts a chill on everything that requires bipartisanship."
Democrats acknowledged that both parties have used the filibuster to block nominees they opposed, but they argued Republicans have used it far more often in recent years—and to block people to hamper the operation of agencies they opposed, rather than because of the nominees' qualifications.
The debate brought a role reversal for the parties from 2005, when Republicans held the majority and threatened to impose their own rules change. At the time, Democrats had blocked a set of judicial nominees chosen by President George W. Bush.
Mr. Obama, as a senator in the minority, had opposed the rule change when Republicans were considering it. He said neither party should "change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet." Under such a change, "the bitterness and the gridlock will only get worse."
Mr. McConnell, then a member of the majority, also saw the issue differently than he does today, arguing that the rules change wasn't a break from tradition. "Despite the incredulous protestations of our Senate colleagues, the Senate has repeatedly adjusted its rules as circumstances dictate," he said.
Shortly after changing the rules Thursday, Senate Democrats used the new, 51-vote threshold to advance the nomination of Patricia Millett to be a judge on the D.C. appeals court. Ms. Millett's nomination cleared a procedural hurdle with support from 55 senators. Republicans previously had blocked her nomination under the 60-vote requirement. A final vote is expected after Thanksgiving.
The rules change gives Mr. Obama far more leeway to make the appointments he wants to his administration and to shape the federal judiciary for years to come. Those branches of government have become more important to his second term, given the trouble he has had moving legislation through Congress, particularly the Republican-controlled House.
"If Obama is to get anything done, it's going to be because he can put people in place in the courts and the executive branch," said Thomas Mann, an expert on Congress at the Brookings Institution.
"Go ahead, make my day," said Carrie Severino, chief counsel and policy director at Judicial Crisis Network, who often gets involved in judicial nomination battles. Referring to two of the most conservative Supreme Court justices, she added: "There's a lot of [Antonin] Scalias and [Clarence] Thomases that we'd like to have on the bench. It will make it that much easier."
The sour feelings created by Thursday's move may affect unrelated issues before Congress, several people predicted, such as attempts to find common ground on the budget and an immigration-law overhaul.
"It grossly complicates and adds another level of emotion to an already emotional debate between Democrats and Republicans, particularly on anything to do with taxes and spending," said Stan Collender, who worked for Democrats on the House and Senate budget committees.
Trust between the parties has been in short supply even before the rules fight, and prospects for a budget and immigration compromise had already dwindled. Against that backdrop, many Democrats concluded that they had little to lose in a well that was already poisoned.