Bloomberg News

Senate Enacts Rules to End Minority Blocking of Nominees

November 21, 2013

Senate Changes Rules to Stop Minority From Blocking Nominations

Senate Majority Leader Senator Harry Reid (D-NV) speaks to members of the media after the Senate Democratic weekly policy luncheon on Nov. 19, 2013 on Capitol Hill. Photographer: Alex Wong/Getty Images

The U.S. Senate changed its rules to let a simple majority confirm most presidential nominees, defying opposition from Republicans who called it the most dangerous revision of its process in more than two centuries.

The Senate voted 52-48 today on a procedural issue ending the requirement that at least 60 votes are needed to advance nominations, except for those to the U.S. Supreme Court. Republicans said the move by majority Democrats was a short-sighted blow to the Senate’s institutional integrity.

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

Republicans’ outrage was stoked after Senate Majority Leader Harry Reid invoked what has been described as the nuclear option, establishing that executive branch and lower-court nominations need 51 votes rather than 60 for confirmation. The change wouldn’t apply to legislation.

Democratic support for such changes 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 to end the delaying tactic known as a filibuster. Democrats control 55 of the chamber’s 100 seats.

Government ‘Gears’

President Barack Obama said today the Senate’s action will 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 at the White House. “The gears of government have to work.”

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 Vote

Today’s 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, today said he tried and failed yesterday to work out an agreement with Reid to avoid changing the rules.

Millett Advances

Reid orchestrated the change as the Senate reconsidered its Oct. 31 vote that had blocked the nomination of Washington lawyer Patricia Millett to a federal appeals court often considered second in importance only to the Supreme Court because of its influence over regulatory policy.

Origins of The Filibuster

Under the new rule, the Senate voted 55-43 to limit debate on Millett’s nomination to the U.S. Court of Appeals for the District of Columbia Circuit. Senate rules still require 30 hours of debate so a vote won’t occur until after a two-week break that starts later today.

Senate Minority Leader Mitch McConnell said on the floor that Democrats are “cooking up a fake fight over judges” to distract from flaws in the roll out 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.”

Watt Blocked

Democrats are incensed with Republican moves to block Obama nominees including Representative Mel Watt, a North Carolina Democrat tapped to head the federal agency that oversees government-chartered mortgage finance companies Fannie Mae and Freddie Mac.

The rejection of Watt’s nomination last month -- the first time a sitting member of Congress had been denied confirmation in more than 150 years -- has led to pressure for Reid to push for altering the rules.

“The changes we made today will apply equally to both parties,” Reid told reporters after the vote.

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 after the discussions failed to yield a compromise.

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

Collins, Corker

Senator Thad Cochran, a Mississippi Republican, said the move “diminishes the power of the Senate to join with the executive in making certain decisions that are unique to our government.”

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.

Senator Bob Corker, a Tennessee Republican, said he was stunned to be back in this institutional standoff just a few months after the July showdown, saying Reid’s move “holds a gun” to the heads of senators in the minority.

“At some point you have to throw up your hands and say, they’re going to use brute, blunt force,” Corker said. “As one of the folks who has taken some of the tough votes to make this place function, I could not be more disappointed.”

Senator Jeff Merkley, an Oregon Democrat, yesterday made the case on the Senate floor for employing the “nuclear option” to change the rules through a simple majority vote to limit opponents’ power to block nominees.

End Strategy

“It is time to end the block-and-destroy strategy being employed by the minority,” Merkley said.

A three-month truce between the parties on nominations unraveled amid opposition by Republicans to Obama’s picks for the D.C. Circuit -- often regarded as the nation’s second-highest after the Supreme Court.

On Oct. 31, Republicans blocked confirmation of Millett for a vacancy on the court. On Nov. 12, they blocked Georgetown University law professor Nina Pillard’s nomination to another vacancy on the same court. And on Nov. 18, the nomination of U.S. District Judge Robert L. Wilkins fell short of the required 60-vote margin.

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 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.”

Democrats also have criticized Republicans for moving Oct. 31 to block Watt’s nomination, saying they did so because they oppose the law Congress enacted to regulate financial institutions following the 2008 financial crisis.

To contact the reporters on this story: Kathleen Hunter in Washington at khunter9@bloomberg.net; Cheyenne Hopkins in Washington at chopkins19@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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