But if McConnell decides to violate the spirit of that agreement and stage partisan filibusters of nominees — and can keep 40 of his troops together — he can stop a president’s appointees in their tracks and in the process can kill agencies and stymie programs.
We can expect this to happen with the NLRB, where Republicans will keep the agency below its required quorum and thus prevent it from acting, and with the FEC, where McConnell will keep all five of the current commissioners whose terms have expired in office to keep the agency deadlocked and impotent.
We can expect it to happen with the previously successful attempts to devastate the Centers for Medicare and Medicaid Services, so it cannot effectively implement the health care law, and with the Consumer Financial Protection Bureau, so Senate Republicans can put a huge roadblock in the implementation of Dodd-Frank financial regulation and allow banks to operate without restraint.
It is likely to happen with appointees to the Independent Payment Advisory Board, the best hope for controlling Medicare costs. And it would not be surprising if Senate Republicans try to stall a slew of Obama nominees for appeals courts, especially the D.C. Circuit.
If these things happen, I would be surprised if Reid does not revisit the filibuster issue midsession, using the same technique his predecessor, Bill Frist, raised a few years ago as a possibility to overcome judicial holds and filibusters. That would be unfortunate on many fronts. But there is an easy way to avoid it — for McConnell to show that the deal he reached with Reid was indeed in good faith and that the Senate will return to its long-standing norms where party-driven filibusters were rare and reserved for issues of great national moment and a handful of nominees who had real issues of competence or moral turpitude.
Norman Ornstein is a resident scholar at the American Enterprise Institute.