Senate Rules Shift on Nominees Risks Legislative Slowdown

Nov. 22 (Bloomberg) -- Bloomberg White House correspondent Phil Mattingly examines the political fallout of the major change in Senate voting rules for presidential nominees. He speaks on Bloomberg Television’s “Bloomberg Surveillance.”

The most significant change in three decades in how the Senate approves presidential nominees could make one of the least productive Congresses even more gridlocked, endangering efforts to raise the nation’s debt ceiling and fund the government, Republicans say.

Senate Majority Leader Harry Reid’s move to end filibusters for most executive nominations yesterday led to an escalation of partisan warfare that risks the success of spending talks as well as defense and farm policy legislation.

“This is the most important and most dangerous restructuring of Senate rules since Thomas Jefferson wrote them at the beginning of our country,” Senator Lamar Alexander, a Tennessee Republican, said after yesterday’s vote.

The change clears a path for Senate approval of three nominees to a federal appeals court in Washington that often rules on challenges to government regulations and currently has a Republican edge. Gaining a bigger Democratic presence on the panel would help protect President Barack Obama’s second-term agenda, including steps to strengthen consumer-finance protections and Environmental Protection Agency moves to limit carbon-dioxide pollution by power plants.

Over the objections of the chamber’s Republicans, the Senate voted yesterday to alter its rules to let a simple majority confirm all nominees except Supreme Court justices, ending a 38-year practice by which a single senator could require 60 votes to install presidential picks.

Photographer: J. Scott Applewhite/AP Photo

From left, Sen. Charles Schumer, D-N.Y., Senate Majority Leader Harry Reid of Nev., and Senate Majority Whip Richard Durbin of Ill., defend the Senate Democrats’ vote to weaken filibusters and make it harder for Republicans to block confirmation of the president's nominees for judges and other top posts, on Nov. 21, 2013, on Capitol Hill. Close

From left, Sen. Charles Schumer, D-N.Y., Senate Majority Leader Harry Reid of Nev., and... Read More

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Photographer: J. Scott Applewhite/AP Photo

From left, Sen. Charles Schumer, D-N.Y., Senate Majority Leader Harry Reid of Nev., and Senate Majority Whip Richard Durbin of Ill., defend the Senate Democrats’ vote to weaken filibusters and make it harder for Republicans to block confirmation of the president's nominees for judges and other top posts, on Nov. 21, 2013, on Capitol Hill.

‘Pretty Tough’

Republicans called the move the most dangerous revision of Senate practices in more than two centuries, and congressional observers predicted the changes would make it far more difficult for Democrats to gain the support of at least five Republicans needed to end filibusters of legislation. That will still require 60 votes.

The Ins and Outs of Supermajority Rule

“I just think after today, legislating’s going to be pretty tough,” said Senator Lindsey Graham, a South Carolina Republican who often works with Democrats. Lawmakers face a Jan. 15 deadline for passing a measure to continue federal funding and avoid a government shutdown. They have until Feb. 7 to enact an increase in the nation’s legal debt limit.

Republicans called the 52-48 vote to alter Senate practices a short-sighted blow to the chamber’s institutional integrity.

‘Most Dangerous’

“If you thought the Senate has already ground to a near standstill, this is like throwing sand into the gears of an already rusty machine,” said Republican strategist Ron Bonjean, who was an aide to former Majority Leader Trent Lott. “It’s really going to heighten the tensions even further, create bitter partisan arguments and add to the acrimony that’s currently in the Senate.”

Republicans’ outrage followed the decision by Reid, a Nevada Democrat, to invoke what has been described as the nuclear option and establishes that executive branch and lower-court nominations need 51 votes rather than 60. The change won’t apply to legislation.

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Democratic support for the shift gained momentum this week after a third consecutive nominee for the U.S. Court of Appeals for the District of Columbia Circuit fell short of the 60 votes needed. Democrats control 55 of the chamber’s 100 seats.

Should Democrats lose their majority in the 2014 midterms or in subsequent elections, they may regret lowering the threshold, said Robert Dove, a former Senate parliamentarian.

‘An Earthquake’

“The people who put this through will live to regret it,” Dove said. “I can’t imagine a larger change. This is an earthquake. This in my view means there are no longer rules in the Senate.”

Senate Minority Leader Mitch McConnell, a Kentucky Republican, said he understands why this rules change would appeal to “uninitiated newcomers” who have served “exactly zero days in the minority,” yet those who have been around longer should know better. Thirty-three in the chamber’s Democratic caucus have been elected since their party gained control of the chamber in 2007.

Obama said the Senate’s action would help end an “unprecedented pattern of obstruction” by a small group of lawmakers that he said harmed the economy and led to gridlock in the courts.

“A majority of senators believe, as I believe, that enough is enough,” Obama said yesterday the White House. “The gears of government have to work.”

Josh Earnest, Obama’s deputy press secretary, said yesterday that filling vacant judgeships was atop the president’s agenda under the new rules. He declined to say which opening Obama would fill next, adding that “the president certainly feels that sense of urgency” to make judicial nominations.

Judicial Vacancies

There are 93 judicial vacancies, compared with 59 when Obama took office, Earnest said. During the same time under former President George W. Bush, Obama’s Republican predecessor, vacancies declined from 84 to 29, Earnest said.

Democratic Senators Carl Levin of Michigan, Joe Manchin of West Virginia and Mark Pryor of Arkansas joined Republicans to oppose the change.

Reid said Republican obstruction had left him no other option. Since the nation was founded, half of the 168 nominees delayed in the Senate using the procedure were Obama’s selections, Reid said.

“Is there anything fair about that?” he said before the debate and vote. “The American people believe the Senate is broken, and I believe the American people are right.”

1975 Change

The vote was the most significant change to filibuster practices since 1975, when senators abandoned a bid to end debate with a simple majority and instead lowered the threshold to 60 from 67.

Senators in 1964 began regularly using the so-called cloture rule, adopted in 1917, to stop debate after ending the record 57-day filibuster of civil rights legislation. Since then, the tactic has been used with increasing frequency as a way to block or delay legislation.

Republican Senator Rand Paul of Kentucky in March held a 13-hour filibuster to delay John Brennan’s confirmation as director of the Central Intelligence Agency. Paul sought and won a pledge from the Obama administration that it wouldn’t use drones to target Americans on U.S. soil unless they posed an imminent terrorist threat.

Senator John McCain, an Arizona Republican, said he tried and failed earlier this week to work out an agreement with Reid to avoid changing the rules.

McCain, who brokered an 11th-hour deal in July to avoid a similar showdown over nominees, told reporters his talks with Reid have been suspended.

‘No Rules’

“They have used the majority to change the rules and therefore there are no rules,” McCain said. “It’s a sad day for the Senate.”

Maine Republican Susan Collins, a Republican who often works with Democrats, said Reid’s decision to exercise the option was “absolutely” an overreaction.

“And one that I predict he will rue the day at some point,” she said.

Reid orchestrated the change as the Senate reconsidered its Oct. 31 vote that had blocked the nomination of Washington lawyer Patricia Millett to the U.S. Court of Appeals for the District of Columbia Circuit, often considered second in importance only to the Supreme Court because of its influence over regulatory policy.

D.C. Circuit

The D.C. Circuit’s current lineup gives Republicans an advantage even though its full-time judges include four appointees from each party. That’s because six senior judges also hear cases, and five of them were selected by Republican presidents.

The party breakdown can make a difference when three-judge panels consider high-stakes regulatory cases. When the D.C. Circuit threw out an EPA rule that would curb emissions from coal-fired power plants in upwind states, the vote was 2-1, with the lone Democratic appointee in the minority.

Millett’s was one of a trio of D.C. Circuit nominees Republicans have blocked since Halloween, spurring the unraveling of a truce between the parties on nominations.

Senator Elizabeth Warren, a Massachusetts Democrat, said Republicans’ recent efforts had effectively said Obama “has no right to nominate anyone to a vacancy on the D.C. Circuit.”

“That’s fundamentally wrong,” Warren said. “And I think it shifts things so we not only have a right to change the filibuster rules, I think we have a responsibility to change the filibuster rules.”

Watt Nomination

Democrats also are incensed that Republicans blocked the nomination of Representative Mel Watt, a North Carolina Democrat tapped to head the agency that oversees government-chartered mortgage finance companies Fannie Mae and Freddie Mac.

The Oct. 31 rejection of Watt’s nomination -- the first time a sitting member of Congress had been denied confirmation to a major executive-branch post since 1843 -- has led the party base to pressure Reid to alter the rules.

McConnell accused Democrats of “cooking up a fake fight over judges” to distract from flaws in the rollout of Obama’s health-care law.

“It’s a big mistake because the whole story is Democrats won’t be in power in perpetuity,” said Senator Richard Shelby, an Alabama Republican and 20-year veteran of the chamber. “The Senate will be dramatically changed. It could be whoever’s in power takes all.”

To contact the reporters on this story: Kathleen Hunter in Washington at khunter9@bloomberg.net; Laura Litvan in Washington at llitvan@bloomberg.net

To contact the editor responsible for this story: Jodi Schneider at jschneider50@bloomberg.net

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