Beyond the sort of brinkmanship that always grabs public attention in the waning hours of the legislative year, one story out of Congress is going to fascinate the insiders and may infuriate the institutionalists.
Senate Republicans will meet Tuesday to debate what to do about the filibuster after they take over the place in four weeks. Will they make good on a threat to double-down on the “nuclear option” exercised by the Democrats, which would mean neutralizing the filibuster as a tool for stopping legislation in addition to nominations? Will they do the opposite and declare themselves totally magnanimous, proposing to return the rules to the way they were so the Democrats might begin leveraging the historic power of the minority? Or will they go to neither extreme and acquiesce in the new normal?
“You never know,” the incoming majority leader, Mitch McConnell of Kentucky, said on Fox News last week when asked which way his caucus was headed — or even how he planned to steer the discussion.
A final decision is unlikely before January, so the freshmen can have a chance make their views known. But one viable answer, which may be a bit surprising given all the melodrama that attended the Democratic power play of a year ago, is this: For at least the next two years, it doesn’t matter much which option they choose.
That’s because having the majority brings with it unfettered control of the Senate calendar. One of McConnell’s most important new powers will be to decide what comes to the floor, and when.
In other words, whether the simple-majority threshold for nominations is abandoned or retained won’t make any difference when it comes to filling vacancies in the administration, at U.S embassies , in the regulatory agencies or on the federal bench . Whenever President Barack Obama sends up a name the GOP doesn’t like, McConnell’s cleanest option will be to park the nomination papers on a high shelf in his office.
That’s almost certain to happen dozens of times in the 114th Congress, and Democrats will be powerless to do anything beyond raising a sustained fuss in hopes of applying public pressure on the GOP to relent. McConnell may never need to take part in a cloture vote on a nominee, because the path to confirmation will be opened only when he decrees it.
Consider what happened almost a decade ago, the last time a lame-duck president from one party confronted a Senate in the hands of a new majority leader from the other party. Harry Reid permitted roll calls confirming 28 judges and just eight other administration officials and top military brass between January 2007 and July 2008 — after which there were no more floor votes on George W. Bush’s nominees. And there was but a single cloture vote on a nomination during that time, which Reid arranged after his fellow Democrats became sharply divided over an appeals court pick opposed by some civil rights groups. (The judge, Leslie Southwick of Mississippi, squeezed through when 13 Democrats voted with the GOP.)
Reid opposed both Cabinet replacements during that period, Michael Mukasey for attorney general and Jim Nussle for budget director, but allowed their confirmations anyway. That was, in part, because other Democrats supported the picks, but also because the Nevada Democrat concluded that thwarting votes on such senior officials would be more confrontational than politically prudent.
That’s a precedent McConnell surely is aware of now, which is why Pentagon nominee Ashton Carter and attorney general pick Loretta Lynch can expect to see their nominations addressed by the entire Senate no matter what levels of conservative GOP opposition build during confirmation hearings.
But, beyond Cabinet choices or a potential Supreme Court justice — who, under the new rules, is the only sort of nominee who must clear the 60-vote threshold — confirmation showdowns generally will happen out of public view.
The same also will be true for legislation the Democrats like. It’s already extremely difficult, as the GOP has lamented for the past eight years, for the minority to force a vote on one of its policy proposals. So, with or without a weakened legislative filibuster, Democrats will be at the mercy of the GOP whenever they seek a debate on one of their own ideas or an Obama legislative priority.
For McConnell there are two tempting rationales for lowering (from 60 votes to a simple majority) the threshold for advancing a bill. First, he would never be compelled to find a half-dozen or so centrist Democrats to help advance ideas his Republicans had united behind. Second, it’s what he has very publicly threatened to do.
“There's not a doubt in my mind that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything,” he said on the floor on June 18, 2013. “I wouldn’t be able to argue, a year and a half from now if I were the majority leader, to my colleagues that we shouldn’t enact our legislative agenda with a simple 51 votes, having seen what the previous majority just did. I mean there would be no rational basis for that.”
Finally, totally undoing the filibuster (as well as restoring its old powers) still is supposed to require the votes of 67 senators — a bipartisan non-starter, in either direction, given the current climate. McConnell may well conclude that, having lambasted the Democrats for “breaking the rules to change the rules” as often as he has, he’s unwilling to do the same thing himself and then have to confront the hypocrisy police.
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