The Senate’s détente: Treating the symptoms, not the disease

The symptoms included an unprecedented backlog of presidential nominees, sandbagged for months – sometimes years -- by Minority Leader Mitch McConnell R-Ky.).  The disease is a filibuster rule that gives 41 out of 100 senators unchecked veto power over the entire legislative process, including the approval of nominees, often without so much as one word spoken on the Senate floor.

They had to put the “nuclear option” on the table, but Majority Leader Harry Reid (D-Nev.) and his colleagues deserve credit for standing strong on behalf of Americans appalled by the GOP’s obstruction for obstruction’s sake. Reid rightly demanded a government that is at least fully staffed.

But how did we get to the point where up or down votes on seven executive branch nominees constitute a huge victory?

One reason is that the nature and breadth of the objections to these nominees was so unprecedented.  McConnell’s strategy was to decapitate agencies like the Consumer Financial Protection Bureau or the Environmental Protection Agency that he lacks the votes to kill outright.

But the GOP leader’s justification for standing in the Senate door to block two National Labor Relations Board (NLRB) nominees -- their “illegal” recess appointment – ignored his role in filibustering their original nominations. (A lawsuit challenging their appointments is pending at the Supreme Court.)

The Senate deal will protect Americans against gross abuses by big banks and corporations sidestepping environmental regulations. Workers will now have a functioning NLRB. And President Obama’s cabinet is almost fully staffed.

But the Senate minority retains its power to use the 60-vote filibuster rule to block other nominees and keep the Senate from even debating matters like gun violence prevention and student loan rates.

Filibustering senators also remain under no obligation to filibuster in the style of Texas Senator Wendy Davis (D) or Jimmy Stewart in Mr. Smith Goes to Washington. Phoning it in will continue to do. Reid has been subject to a record 400 filibusters in his time as majority leader, but C-SPAN viewers are far more likely to see an empty chamber of 100 antique desks than they are a senator holding the floor as a matter of principle.

The framers’ warned about this disease. Alexander Hamilton wrote that supermajority requirements would be used by a minority of senators to “embarrass the administration, destroy the energy of government, and subject decisions of Congress to the caprice of an insignificant, turbulent, or corrupt junta.”

Time spent debating the rules, threatening filibusters and gumming up the works instead of legislating surely has been used to “destroy the energy of government.” And McConnell knows it.

Fortunately, Reid and his colleagues stood up this time against those who prefer gridlock to legislating. Hopefully, this was just step one.  It shows how broken the Senate has become that merely doing its job – providing advice and consent – is grounds for late night joint caucuses and dueling press conferences.  Until the Senate reins in the power that the 60-vote filibuster rule provides to its minority, we will still need to work to reclaim democracy.

Spaulding is staff counsel at Common Cause.