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President Barack Obama’s call for a sweeping overhaul of Congressional ethics and procedure has little chance of becoming reality in an institution adverse to change and built to benefit from its rules.
In his State of the Union address, the one-time Senator proposed that the Senate approve a version of the “nuclear option,” which would end filibusters of presidential nominations. Obama said nominees should get an up-or-down vote after 90 days, regardless of whether they could garner the 60 votes needed to overcome a procedural blockade.
“A simple majority is no longer enough to get anything — even routine business — passed through the Senate,” Obama said. “Neither party has been blameless in these tactics. Now both parties should put an end to it.”
The call to end the filibuster is not new, and executing the change remains improbable.
“It seems so obvious and clear until you get into it, then you find that getting the necessary votes together [to change the rules] and holding them through this process is more difficult,” said Senate
Majority Whip Dick Durbin (D-Ill.), before noting his understanding of why Obama would want to pursue it.
“You turn on C-SPAN for classical music because you’re not getting business out of the Senate,” Durbin added. “Three days or four days at a time on every nomination? Come on, I mean the reality is that doesn’t work for any president.”
But the Illinois Democrat did not fully endorse the 90-day limit as the right solution. He said it was unlikely that Senate Democrats would bring nominees to the floor and force a days-long filibuster standoff with Republicans.
Even Obama himself was opposed to making such a drastic move when he was a Senator in 2005, when then-Majority Leader Bill Frist (R-Tenn.) contemplated forcing a rules change.
“Everyone in this chamber knows that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness and the gridlock will only get worse,” Obama said in April 2005. “In the long run, it is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic
The inconsistency between then and now was one National Republican Senatorial Committee Chairman John Cornyn was quick to point out in the moments following the State of the Union.
“I would not support making the Senate into the House. We have rules that provide for more deliberation and debate,” the Texan said. “Obama was one of those Democrats who filibustered [President] George W. Bush’s nominees, so I found his switch a little surprising.”
The nominations issue has recently come to the forefront of Senate debate following a series of controversial recess appointments and in the face of a slow legislative session. Some say that while a rhetorical back-and-forth is happening between lawmakers of both parties in front of the cameras, a different fight is growing between the administration and business.
A GOP aide said that with the filing of lawsuits over appointments to the National Labor Relations Board, the White House confrontation over recess appointments is now with jobs groups rather than with Senate Republicans. Pro-business groups, including the National Federation of Independent Business, filed the lawsuits earlier this month.
“Everybody knows President Obama wanted to pick a fight with Congress,” the aide said. “What he got instead was a fight with the nation’s jobs groups.”
The aide added that the White House proposal for requiring an up-or-down vote on nominees after 90 days is based on “a false argument” that only the minority party holds up nominees. Both sides use the nomination process as leverage with the White House. Recently, Sen. Bob Menendez (D-N.J.) held up a nominee for the Court of Appeals.
“It can be used quietly, which makes it the perfect point of leverage,” the GOP aide said. “Both sides use the process to get leverage over a branch that has grabbed more and more power from the” legislative branch, which makes it unlikely that even Senate Democrats would go along with it.
Members tend to exploit the nomination process even more since Congress has taken a break from earmarks, which was another point of leverage, the aide noted.
But Democrats such as Senate Majority Leader Harry Reid (D-Nev.) say the process is more broken than ever before, which is what should prompt the consideration of reform.
“We just seem to have come to a point now where the Senate Republicans [say] that they’re going to approve no new judges,” Reid said Tuesday.
“It’s not working very well,” he said of the nominations process before adding, “We tried to do something on secret holds, but that hasn’t helped much at all.”
Reid’s last remarks underscore one of the other large obstacles in the way of procedural reform, which is who would champion it.
At the end of 2010 and the beginning of 2011, many Democrats in the 2006 class fought for filibuster reform and were not successful. Now, those same Democrats are facing tough re-election contests and hammering on rules changes might not be their most effective messaging option.
“I don’t see a real way that it happens,” one Senate aide said of reform. “It’s probably that same group of people [who would want to see change] and now half of them are up for re-election, so I don’t know that that’s an issue they want to talk about.”
Emma Dumain contributed to this report.