Later this summer, the Senate may at last tackle a highly controversial issue: whether or not it should approve executive branch nominations decisions based on a majority vote. In doing so, Senate Majority Leader Harry Reid will ironically be taking on the warped new interpretation of Senatorial courtesy.
Reid's interest in reforming the filibuster — the procedural rule that allows senators to block any action unless 60 of his colleagues vote in opposition — has been percolating for a while. Late last year, he threatened to implement changes in January. And he did — small tweaks agreed to by Mitch McConnell. But with an unexpected move this week, Reid signaled that the fight may be back on.
The Huffington Post reported on the significance of a fairly mundane procedural move.
The likelihood of a knockdown fight over the filibuster this summer increased on Tuesday as Senate Majority Leader Harry Reid (D-Nev.) pulled back a vote on the confirmation of Richard Cordray to lead the Consumer Financial Protection Bureau. …
Reid indicated Tuesday that he would bring Cordray's nomination to a vote in July, and a Senate Democratic aide said that vote will come at a time when Reid is ready to launch into a broader fight over all of Obama's stalled nominees.
Reid put an exclamation point on the move yesterday in a statement reported by the Washington Post's Greg Sargent. "Presidents — be they Republican or Democratic," Reid wrote, "deserve to have the people working for them that they choose. The Senate's role is to advise and consent. But Republicans have corrupted the Founders' intent…"
(Reid underplays his own party's role in use of the tool, but, as The Atlantic's James Fallows has repeatedly noted, not by much.)
Sargent analyzes Reid's comments:
The Senate Majority Leader has been striking a delicate balancing act. His challenge has been to slowly escalate the threat level by giving his threats ever more specificity, while simultaneously maintaining an aura of credibility about them. The current threat comes very close to saying that if Republicans obstruct Cordray — and others, such as Gina McCarthy to head the EPA, and Thomas Perez as Labor Secretary — then Reid will push the nuke button.
The "nuke button" is a reference to the common analogy used for filibuster reform, that it amounts to a "nuclear option" in devastating the ostensible congeniality of the Senate. The Senate, you see, prides itself upon being a place where gentlemanly (and, slowly, gentlewomanly) debate results in bipartisan agreement. Rescinding the filibuster is seen somehow to be an admission that the Senate can't police itself over a brandy in some wood-paneled room. That the body is seized with paralysis due to overuse of the filibuster, however, is somehow not seen as such a threat.
Reid's proposal wouldn't really be "nuclear." He's apparently not proposing to eliminate the filibuster in its entirety; according to Politico, he just wants to reform the process of allowing nominations, and is looking for the 51 votes he needs to do it. That this is his plan is also indicated by the timing. Moving Cordray's approval vote to July pushes the filibuster fight out until after the Senate has addressed the issue of immigration reform. A Reid aide said as much to the Huffington Post: "plan is to wait until immigration is complete before engaging in total all-out nom[ination] fight." Sweeping reform of how the government allows immigrants to become citizens is a big deal. Reforming a subset of a tricky procedural rule is a whole other thing altogether.
That's partly because, in a very short period of time, the 60-vote threshold for decision-making, once an aberration, has become the norm. As Slate's Dave Weigel noted, freshman Senator Ted Cruz on Tuesday derided a plan that would allow an increase to the debt ceiling to be decided on a 51-senator vote.
This body may well vote to raise the debt ceiling. But if this body votes to raise the debt ceiling, we should do so after a fair and open debate, where the issue is considered and where the threshold is the traditional 60-vote threshold and we can address what I think is imperative--that we fix the problem.
Emphasis added. For a senator who took office in January, that threshold is indeed traditional, no matter how much it frustrates his senatorial elders. To some extent, it's the new normal, the new standard for Senatorial comity.
In an article at New York, Jonathan Chait describes the downstream effect of not changing the rule. The DC Federal Circuit Court, which has shown a wide-ranging willingness to rule against legislation, has four vacancies, as it has since Obama took office. Chait writes:
These are the battle lines forming for what appears to be a major partisan war this summer: Republicans insisting not only that they need not approve vacancies in the D.C. Circuit but that Obama’s attempt to fill them represents a kind of tyranny, and Democrats threatening to limit the filibuster as a routine weapon to obstruct appointments.
At the beginning of the 11th Congress, in January 2011, the average tenure of sitting senators was 11.4 years, meaning that most — unlike Reid and McCain and McConnell — had only been part of the body in the increasingly-filibuster-happy Bush and Obama eras. For these senators, like Cruz, the filibuster is a "routine weapon." It's Reid who is acting outside the norm, in some sense, but that interpretation will almost certainly break down along partisan lines.
Until a Republican becomes president.