Breaking: Deal reached to preserve filibuster
posted at 10:59 am on July 16, 2013 by Ed Morrissey
There aren’t a lot of details on the deal cut by the Senate to stop the nuclear option, but both sides are emerging from talks heralding the agreement:
Senators have reached a tentative deal on averting the constitutional showdown over confirming President Obama’s agency nominations. “We may have a way forward on this, I feel fairly confident,” Majority Leader Harry Reid (D-Nev.) said Tuesday morning. Sen. John McCain (R-Ariz.) signaled enough Republicans would support breaking a filibuster on the first test vote on the showdown, for Obama’s pick to lead the Consumer Protection Financial Bureau. “I think everyone will be happy,” Reid said. The deal would not be finalized until later Tuesday afternoon.
At the moment, it appears that the deal involves agreeing to hold a confirmation vote for Richard Cordray as the head of the Consumer Financial Protection Bureau, which was created by Dodd-Frank in 2010 but has yet to have a confirmed executive. Barack Obama gave Cordray a recess appointment while the Senate wasn’t actually in recess, angering Republicans who vowed to block Cordray in the next session.
In return, Democrats will only get two confirmation votes for the NLRB, whose recess appointments have been overturned by the 11th Circuit Court of Appeals. It appears that Reid will ask the White House to choose new appointees rather than try to restore the overturned appointments:
looks like under the deal there will be new NLRB nominees but that those nominees will get a vote nonetheless.
— Sam Stein (@samsteinhp) July 16, 2013
Dem aide: there will be 2 new NLRB noms. but deal stipulates that Rs agree in writing to approve them.
— Sam Stein (@samsteinhp) July 16, 2013
That should be enough to restore the quorum at the NLRB, but allows Republicans to impose a penalty for the abuse of power. These conditions are, of course, all a bit ambiguous, so we’ll keep updating as specifics become available.
Update: According to TPMDC, the two NLRB appointees are definitely out:
In short, Republicans would confirm nominees to all seven positions, a big concession for the GOP. But in a concession for Democrats, they will replace two recess-appointed nominees to the National Labor Relations Board — Sharon Block and Richard Griffin — with new nominees under the following conditions: Republicans pledge to confirm any two replacements by President Obama to the board by Aug. 27. …
The nominees who would be confirmed in the deal are Richard Cordray to run the Consumer Financial Protection Bureau, Gina McCarthy for the Environmental Protection Agency, Tom Perez for the Labor Department and Fred Hochberg for the Export-Import Bank. Under the terms of the deal outlined by Reid’s office, Mark Pearce would be confirmed to the NLRB while Block and Griffin would be replaced.
We’ll see how big of a concession this is by the White House when we see the replacements for Block and Griffin. However, this will still leave the issue of the recess appointments before the Supreme Court — and until the court rules, the appellate decision will remain as precedent, which means an end to almost all recess appointments in the future.
Update: Most of the commenters are ripping the GOP for caving, but they didn’t have much leeway once it became clear that Reid wasn’t bluffing and that he had the votes for a rule change. That would have left the GOP six votes short of stopping any of these nominations. They probably got what they could get — blackballing the two NLRB appointees and forcing the White House to replace them — but they weren’t going to get rid of Cordray or any of the rest of these seven.
By the way, this part of the filibuster will eventually disappear, regardless. We’ve had two parties take a bite of this apple now, and it’s become a mainstream option where a decade ago it was a radical notion. The GOP at least got a concession out of maintaining it this time, but one party or the other will go nuclear in the next three or four years, tops. It’s inevitable now.
Update: Worth discussing, from Wethal in the comments:
IIRC, the Senate rules stipulate that a rules change requires 2/3 vote. Reid is changing them with a simple majority.
Yes, and that was true in 2005, when Republicans wanted to use the nuclear option to change the filibuster for judicial appointments, too. The problem with this argument is that the enforcement body for Senate rules is the Senate itself. No court will interfere in a rules fight in the legislative branch. Would it break the rules? Yes. And the remedy for that would have been … bringing it up in the 2014 election cycle. In the meantime, Block and Griffin would be on the NLRB, potentially mooting the case on recess appointments. The GOP never had more than a jack-high in this poker game, and they knew it.