The Winners—and One Big Loser—of the Filibuster Fight
Filibuster

The Winners—and One Big Loser—of the Filibuster Fight

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As you’ve heard or read by now, perhaps from my colleague Alec MacGillis, the big standoff over presidential nominations and the filibuster is over. On Tuesday morning, Democrats and Republicans reached an agreement about those seven nominees that the GOP was blocking. Basically, the Republicans are relenting. Votes on all seven will take place.

The process started this morning, when 71 senators voted to proceed with an official confirmation vote on Richard Cordray, Obama’s choice to head the new financial protection bureau. A few hours later, the Senate approved Codray's nomination officially, though by a closer margin. The Democrats' one and only concession was about a pair of seats on the National Labor Relations Board. With Republicans blocking his nominees, Obama had used his recess appointment power to put two people on the NLRB unilaterally. A federal court subsequently ruled that, under such circumstances, the board could not issue rulings. Under the deal reached Tuesday morning, Obama is replacing them with two new nominees.

It's not much of a concession. Obama has already chosen the two replacements, based on consulatation with organized labor; one of them is associate general counsel at the AFL-CIO. As part of the deal, Hill sources say, Senate Republicans have indicated they will go along. And while Republicans retain the right to deploy the filibuster on future nominations for executive agencies, Democrats retain the right to use the “nuclear option”to change the voting rules, so that a minority can’t stop a vote from taking place. In other words, if Republicans try these tactics again, they can expect a similar response from the Democratsand, presumably, a similar result.

If you score these things the way Washington usually does, this is a huge win for the Democrats. It's also a huge win for their leaders in the Senateparticularly Harry Reid, who emerged with virtually everything he wanted to achieve. Reid wanted the nominations to move forward. They will. He didn’t want the filibuster to go away, at least for issues other than executive nominations. It won’t. Reid is not the Democrats’ most eloquent or inspiring spokesman. But, like his counterpart in the House, Nancy Pelosi, he gets too little credit for his leadership skills. He's not just a tough negoatiator. He also knows how to keep his caucus together. Remember, plenty of Democrats were skittish about provoking this confrontation. Reid convinced them to do it, and then maintained their support until he got the terms he wanted. "He says what he means and means what he says," says Neera Tanden, president of the Center for American Progress, "and that’s why he won such a resounding victory, not only for his caucus but for the Senate."

The victory also means a lot to the people who depend on a vigilant government to protect them from predatory financial institutions, or to secure their right to organize a union. You won't hear a lot about that in the next 24 hours of media coverage, but it's a big deal.

Republicans, on the other hand, came away with almost nothing. The original goal of this fight was to change the agencies Obama was trying to staffto hold nominations hostage, until Obama and the Democrats agreed to weaken laws and programs that Republicans didn’t like. That effort failed. Last night, Minority Leader Mitch McConnell offered a compromise with just one, scaled-back demand: He wanted Reid to forswear future use of the nuclear option. McConnell couldn’t even prevail on that. Nor could McConnell hold his caucus together. According to multiple reports, it was Senator John McCain who led negotiations with Democrats. (As Greg Sargent notes, it's not the first time McConnell sided with his party's conservatives, only to lose moderate members like McCain.)

Still, if this is a win, it’s a win in a game that never should have been played. Until relatively recently, filibusters of presidential agency nominations were rare. Until the 1990s, it had happened only four times, twice each to presidents Carter and Reagan. Clinton had nine nominations blocked, Bush seven, and that's when the practice really began. But with Obama already up to 16 blocks, the practice had clearly become a lot more common. And that was consistent with McConnell’s unprecedented use of the filibuster, effectively turning the Senate into a super-majority chamber four routine business.

That's how the Senate will continue to operate on other matters. Sahil Kapur at Talking Points Memo explains the implications:

...legislation can continue to be filibustered by Republicans as a matter of course sometimes to be thwarted entirely (such as the DREAM Act of 2010 and gun control legislation of 2013) and sometimes to be used as leverage to extract concessions. That remains a huge redefinition of the Senate minority’s power that has reached unprecedented heights under McConnell, and which Democrats still have no answer to.

As many of us have been saying, for some time, this is not what the framers of the Constitution wanted and this is not the way a well-functioning democracy works. But it's the way a majority of Senators, including leaders on both sides, want it. Today’s deal likely ends the routine obstruction of agency nominations, as a means for re-fighting legislative battles. That’s a great thing. But it’s just one step towards a governing normalcy that remains, for the moment, far away. 

Jonathan Cohn is a senior editor at the New Republic. Follow him on twitter @CitizenCohn

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