The Nuclear Option: A Missed Opportunity

Harry Reid - Senate Majority Leader

By Steven Brenner.

It’s a strange day in Washington when avoiding an event dubbed the “nuclear option” is a bad thing. But then again, it’s often a strange day in Washington, and metaphorical mushroom clouds in the often barely-functional United States Senate would have been a welcome sight this week.

The “nuclear option” isn’t a war move, unless you count the omnipresent conflict between Congressional Democrats and Republicans. It’s a set of parliamentary maneuvers that allows for certain Senate motions to be passed by a simple majority vote (51 votes) rather than a supermajority (typically 60 votes), which is usually functionally required due to the ability of the opposition to filibuster. Recently, Senate Majority Leader Harry Reid (D-NV) has been threatening to use the nuclear option for Senate confirmations of Presidential appointments to positions in the executive branch.

Reid has good reason to issue the threat. Before President Obama, there were a total of 20 filibusters for presidential executive appointments in the entire history of this country. President Obama had 16 in his first term alone. Projections for his second term? 28.

These blocked appointments are plainly interfering with the President’s ability to govern. Increasing consumer protection against financial institutions has always been a key part of President Obama’s agenda. Dodd-Frank created an agency with that specific purpose, the Consumer Financial Protection Bureau (CFPB). Two years of filibustering the confirmation of a director has left this agency without a leader. Another key priority for President Obama is protecting labor. The labor lobby has recently been enraged by the Senate’s blocking of President Obama’s nominees to the National Labor Relations Board (NLRB). Without these appointments, the board does not have enough members to meet quorum and is thus rendered functionless.

Action was clearly needed. However, Republicans threatened a political firestorm at Senator Reid’s threats to remedy this problem by unilaterally changing senate procedure.

And so, on Tuesday, they reached a compromise. They’d confirm five of the President’s nominees to the NLRB, in addition to CFPB Director Richard Cordray and Secertary of Labor-Designate Thomas Perez. And Reid wouldn’t interfere with their ability to filibuster Presidential executive appointees.

Senators are familiar with agreements like this. The previous Majority Leader, former Senator Bill Frist (R-TN), threatened the nuclear option in 2005, when a year into President’s Bush second term, Democrats filibustered conservative judicial appointees. Reid and a bipartisan coalition eventually allowed those nominations to move forward. During an interview in 2008, Reid said that the nuclear option would create “a unicameral legislature, where a simple majority would determine whatever happens.”

Last Sunday on NBC’s Meet the Press, Reid argued that this time was different because he would only use the mechanism for political appointees, not judicial nominees.

This is a key distinction. While the constitution requires the same standard for judicial and political appointees, they are functionally very different confirmations. For judicial nominations, the Senate is charged with confirming a nominee who will hold a spot on a federal court for decades and decades to come. But political appointees are members of the executive branch. They are selected by the President, who was elected by the people with the understanding that he selects a team to bring along with him. Moreover, these appointees often serve limited terms. Filibustered appointees are waiting an average of nine months before being confirmed, which is regularly a significant portion of the term they are proposing to serve. These people work for the President, which means that they share in his mandate far more than judicial nominees do. He cannot do his job without them. The Senate needs to make sure that they are adequately qualified and let them pass through the door.

Executive branch confirmations are a microcosm for the current deep political division in the United States. Every nominee of the political party that holds the White House seems crazy to the other side because the two factions really are that far apart when it comes to governing philosophy.  

Take CFPB Director Richard Cordray. Why would Senate Republicans who voted against the Dodd-Frank Act confirm the President’s appointee to the regulatory agency created by Dodd-Frank, which they view as massive and unnecessary? To these Senators, Dodd-Frank is a terrible law, so it makes sense for them to do everything in their power to make sure that nothing comes of Dodd-Frank by stopping the agency from having a permanent director. The NLRB nominations are similar. Stopping an agency that regulates business from having enough members to function is exactly in line with a key Republican priority: getting the federal government out of the way of small businesses.

What results is Congressional gridlock. Since 2000, neither side has felt compelled to accept the consequences of losing a Presidential election. This problem is likely to continue if the roles change.  If Democrats find themselves in the Senate minority and with a Republican White House, will they stop confirming political appointments if they feel the nominee would actually enforce the sitting President’s agenda?  Would a Democratic Senator attempt to filibuster a nominee for Secretary of Health and Human Services if that nominee would propose a reversal of all of President Obama’s positions on access to contraception?  Or how about a nominee for head of the Consumer Financial Protection Bureau who would believe in letting big banks write their own rules?

Some may say that what came out of the Senate compromise on Tuesday was the best of the legislative process, involving intensive bipartisan negotiation and concessions from both sides. It wasn’t. In fact, it was the worst. Harry Reid brought a serious problem to the attention of the American people. He threatened to change it, not just for himself but for everybody. To be sure, he was not abiding by the best parliamentary etiquette. But that was the price he paid to cut through gridlock. And it almost happened, until Republicans agreed to confirm the nominees in exchange for preserving their sacred filibuster and swapping two NLRB nominees.

Now that this episode is over, what has changed in the long term? The Senate minority can still filibuster political appointees. The two sides still remain ideologically distant from each other. And Senators still seem to take every single issue just one step away from absolute crisis. The Senate missed an opening to actually begin to solve nightmarish Congressional gridlock. They had the chance to assume some mutually-assured destruction, wherein each faction would become a little less powerful in order to allow the executive branch to function. And, once again, Congress blew it. They lost their window to start getting back to anywhere near functional.  

Neither side is more in the wrong than the other here. Republicans offered a deal to avoid looking weak, and Harry Reid took it to avoid the post-nuclear option firestorm. Neither sacrificed what they should have for the good of this country. This week, Congress is truly worthy of its single-digit approval ratings.

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