July 16, 2013
By Hans A. von Spakovsky
Senate Majority Leader Harry Reid is pushing hard to eliminate the filibuster for executive nominations, on the grounds that Republicans have stood in the way too many times and are refusing to confirm qualified nominees. What’s so striking about this reason is that it’s false. President Obama’s success rate with nominees is actually higher than that of his Republican predecessor. Eighty-six percent of Obama’s civilian nominees — including both judicial- and executive-branch appointees — were confirmed in the 112th Congress. In the 111th Congress, his success rate was 82 percent.
President Bush, by contrast, had only a 67 percent confirmation rate in the 110th Congress. Bush’s highest success rate came in the 108th Congress, which confirmed 76 percent of his nominees. So the notion that Obama is disproportionately burdened with rejection of his nominees is untrue. On Thursday, Reid announced there would be debate on Monday — and a vote on Tuesday — to change the rules governing confirmation of executive nominations. Interestingly, he scheduled the debate in the old Senate chamber. What distinguishes the old Senate chamber from the Senate floor? Lack of C-SPAN coverage, for starters. Could it be that Reid does not want the American public to see the debate unfold?
The hypocrisy — never in short supply in D.C. — is truly monumental here. Back in 2005, when the Republicans considered doing this (but didn’t), Reid said: “The filibuster is not a scheme, and it certainly isn’t new. The filibuster is far from a procedural gimmick. It’s part of the fabric of this institution we call the Senate.” Reid vowed he would never “employ or use the nuclear option” and claimed that to do so would “ruin our country.” My, how times have changed.
President Obama apparently supports Reid’s planned nuclear strike. But back in 2005, Senator Obama warned: “If the majority chooses to change the rules and put an end to democratic debate, then the fighting and bitterness and the gridlock will only get worse.” Obama has been wrong about many things, but he was certainly correct about this issue.
Bob Dove, now the parliamentarian emeritus of the Senate, started as the second assistant parliamentarian in 1966 and served as the parliamentarian until 2001. He says that ending the filibuster, which preserves the unique character of the Senate and provides for spirited debate, will pour poison into the daily workings of the Senate and cause lasting bitterness.Reid is not the only Democrat who, in 2005 at least, opposed breaking Senate rules to get rid of the filibuster. Senator Chuck Schumer (D., N.Y.) warned that it would “change the whole balance of power and checks and balances in this great Senate and great country.” And Senator Tim Johnson (D., S.D.) said the “notion that . . . rules that have been in place for generations should be eliminated and the bipartisan mandate they allow for should be eliminated is a step in the wrong direction.”
The need to put together 60 votes to break a filibuster, Johnson continued, “takes both parties by the scruff of the neck, brings them together, and says, ‘You will have to reach across the aisle and cooperate, coordinate with your colleagues from the other political party, whether or not you like it.’”
Johnson got it exactly right. The filibuster forces bipartisan consensus on legislation, which is needed to confirm the legitimacy of any proposed law to the public and the nation.
Another lawmaker who got it right in 2005 was Senator Dick Durbin (D., Il.). He observed that those “who are forcing this nuclear option on the Senate are not just breaking the rules to win, but they want to break the rules to win every time.” The fact that Obama has one of the highest confirmation rates of recent presidents is not good enough. Reid doesn’t want any opposition. It seems he wants the Senate to forsake its “advise and consent” role and simply become a rubber stamp for presidential nominees, no matter how radical, extreme, or corrupt they may be.
This is a very serious subject, but I had to laugh at one point when watching the Senate debate on Thursday. There was a discussion of Obama’s recess appointments to the National Labor Relations Board — the D.C. Circuit Court of Appeals found these appointments unconstitutional because Obama made them when the Senate was not formally in recess. Reid excused the appointments by saying they were necessary because of unconscionable delays in the confirmation of the NLRB nominees.
But two of the NLRB nominees, Sharon Block and Richard Griffin, were nominated on December 15, 2011. The President appointed them only two weeks later, on January 4, 2012, claiming (unconstitutionally, as the court later judged) that the Senate was in recess. I laughed because Reid, who now argues that two weeks is an unconscionable delay, held up my nomination to the FEC for two and a half years after then-Senator Obama put a hold on it.
Why is Reid so willing to turn himself into knots to get this rule change? A clue to that question may be in an article published this January in Mother Jones, a magazine read by few conservatives. “Revealed: The Massive New Liberal Plan to Remake American Politics” describes a meeting held in Washington a month after the 2012 presidential election. The three dozen attendees represented the most powerful liberal advocacy groups and unions in the country, including the National Education Association, the Sierra Club, SEIU, the NAACP, People for the American Way, and the AFL-CIO.
These organizations provide the money, manpower, and get-out-the-vote efforts that keep Reid and the members of his caucus in the Senate. The goal of this meeting was to put together a “national, coordinated campaign” to reshape this country into a progressive utopia. They agreed upon three objectives, and one of them was getting rid of the filibuster. They planned a “coordinated push to urge” Reid to “rewrite the rules” to prevent filibusters. This change is clearly intended to allow Reid to ram through legislation and nominees with no opposition whatsoever, a complete and total elimination of the rights of the minority.
That brings up a final point. Reid is saying that this change will apply only to executive-branch nominees. But in a discussion on Friday at the Heritage Foundation, three experts on Senate rules, including Dove, said that such a change could not be successfully limited to executive-branch nominations. In all likelihood, it would quickly extend to judicial nominations and legislation.
Many of the same liberals currently demonizing the Senate’s filibuster rule sang a different song earlier this year when Senator Rand Paul (R., Ky.) used a one-man filibuster to generate a continuing public debate about the drone issue. They also seemed pleased this month when Wendy Davis, a Democratic state senator, filibustered an abortion bill in Austin. Both episodes illustrate how filibusters can bring the public’s attention to an important issue (or important nomination).
But Reid wants to turn the Senate into a majoritarian institution like the House of Representatives, where the minority has no role to play. This would damage the Senate, limiting the public debate and abandoning the broad consensus so essential to good governance.
— Hans A. von Spakovsky is a senior legal fellow in the Heritage Foundation’s Center for Legal and Judicial Studies.
First appeared in National Review Online
Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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