Last week, at the urging of President Obama, the Democratic majority in the U.S. Senate, by a vote of 52-48, muscled through a change in Senate rules that will severely restrict the use of filibusters by the Republican minority.
Not a few observers have characterized the rule change as the Democratic Senate’s “nuclear option.” And therein lies an important tale of what we can expect from Mr. Obama in the remaining three and a half years of his presidency.
In order to take office, presidential appointees ordinarily require confirmation by the Senate in the exercise of its “advise and consent” function. Under the rule change, only 51 votes, not 60, will now be required to end filibusters – which theoretically can be endless and therefore a potent device to prompt the withdrawal of appointments – challenging the confirmation of most presidential nominees.
Since the Senate now has 53 Democrats, 45 Republicans and 2 Independents, Mr. Obama’s appointments can now be expected to enjoy built-in majorities for confirmation. However, though the change was hailed by some as a democratic innovation – a New York Times headlined the move as “Democracy Returns to the Senate” – it is not that simple.
As we argue below, it is a signal that Mr. Obama intends to move his priorities along through executive action and bypass Republican opposition to his agenda in both the Senate and the House. It also means the president will have no incentive to compromise with Republicans on appointments or most anything else and that he will have no compunction denying Republicans any input as to who will occupy key federal positions.
This trampling of minority rights is hardly a revolution in democracy.
Supporters of the change correctly note that President Obama won two elections and should therefore be able, within reason, to appoint anyone he wants. And it is also true that for the past four years Mr. Obama has been frustrated in making many appointments because of the super-majority 60-vote rule.
Yet a review of what precipitated the new rule is instructive. The president and Senate Democratic leaders have been particularly incensed by Senate Republicans stymieing appointments to the U.S. Court of Appeals for the District of Columbia Circuit and to the controversial National Labor Relations Board and the Consumer Financial Protection Bureau, all of which are key to President Obama’s ability to pursue his agenda despite the Republicans having a majority in the House of Representatives.
The Court of Appeals is evenly split, 4-4, between Democrat and Republican appointees, with three current vacancies. The Republicans have successfully blocked three Obama appointees from being confirmed; similarly, Obama appointees to key federal slots have been successfully opposed by the Republican minority in the Senate using the threat of a filibuster.
In fact, the new simple majority rule applies to all federal court nominations except for the Supreme Court. It also applies to Cabinet and all federal agency appointments like the NLRB and CFPB and also to government board panels like the Federal Reserve Board.
All rules promulgated by the White House and federal regulatory agencies, when challenged, must be approved by the DC Court of Appeals in terms of whether they go beyond what was authorized by the legislation they purport to implement. Thus it is not hard to anticipate a scenario in which the president has untrammeled power to pack key federal agencies with appointees who agree with his view of an expansive federal government and who then follow through with extravagant extra-legislative pronunciamentos that will be validated by a sympathetic Court of Appeals.
It’s been pointed out that the tables will be turned should the Republicans gain the majority in the Senate in 2014. And we are hardly suggesting the Republicans have a corner on righteousness. But in the here and now, the Senate rule change is a disturbing indication that President Obama and his congressional allies have positioned the administration to do pretty much what it wants in domestic affairs.
Haven’t the Democrats learned anything from the Obamacare fiasco, which originated in their willfully ignoring the views and preferences of at least half the electorate?