A Post-Nuclear Senate Wouldn’t Be So Bad, Really

A narrow limit on the filibuster isn’t just good for the president’s nominees. It means a better functioning government and a more open calendar for real legislative action.

National Journal
Matt Berman
Nov. 7, 2013, midnight

It’s late Decem­ber, 2013, and the Sen­ate is ex­cited for Christ­mas. But be­fore flee­ing Wash­ing­ton for the de­lights of stock­ings and yule, the Sen­ate has to reck­on with Mel Watt, Obama’s nom­in­ee for the Fed­er­al Hous­ing Fin­ance Agency who failed to be con­firmed in late Oc­to­ber. Just like last time, the con­firm­a­tion vote is largely split by party: 57-41.

But this time, in the post-nuc­le­ar Sen­ate, Watt is con­firmed. Be­cause now you don’t need a fili­buster-proof, 60-vote ma­jor­ity to con­firm an ex­ec­ut­ive nom­in­ee. You need 51. And just like that, you have a mildly bet­ter func­tion­ing le­gis­lature thanks to Harry Re­id’s de­cision to change the rules, al­low­ing a simple ma­jor­ity vote to end a fili­buster of ex­ec­ut­ive nom­in­a­tions.

Okay, no hy­per-tar­geted H-bomb has ac­tu­ally hit the Sen­ate. But back in the real world, after Watt’s nom­in­a­tion was scuttled, Sen­ate Demo­crats (and their Team Cap­tain Emer­it­us Joe Biden) began again sound­ing the nuc­le­ar alarm, send­ing Sen­ate tra­di­tion­al­ists in­to full duck-and-cov­er. Con­tra the fear-monger­ers, a nuc­le­ar op­tion that just al­ters the way the Sen­ate ap­proves ex­ec­ut­ive nom­in­ees won’t be spawn­ing any su­per-powered Cruzi­an mutants. But it could cre­ate a Sen­ate where le­gis­la­tion has more space to breathe, and it would give a big re­lief to the agen­cies that have been plagued by high-level va­can­cies.

Fili­bus­ter­ing ex­ec­ut­ive nom­in­ees doesn’t just muck up Con­gress. It makes the whole ex­ec­ut­ive branch hazy. Take a look at the State De­part­ment, where a le­gion of po­s­i­tions needs to be con­firmed by the Sen­ate. This May, 16 of the top 59 jobs in the de­part­ment were va­cant. Many of those re­main va­cant. This isn’t just the Sen­ate’s fault, as many open­ings don’t have a nom­in­ee. But the in­tense vet­ting pro­cess that a 60-vote re­quire­ment cre­ates is at least par­tially re­spons­ible for the ex­treme slow­down. “I have a new ap­pre­ci­ation for how much the con­firm­a­tion pro­cess has be­come a polit­ic­al foot­ball in re­cent years,” John Kerry told The New York Times, “and what that forces on the vet­ting pro­cess re­quired to an­nounce nom­in­ees.”

In the case of Mel Watt, this pro­cess grates on not just the FHFA, but also on hous­ing re­form ad­voc­ates wait­ing for someone new to take the reins. The Watt hold-up is “cata­stroph­ic for work­ing class Amer­ic­ans,” says Na­tion­al Com­munity Re­in­vest­ment Co­ali­tion pres­id­ent John Taylor. Taylor is no fan of the cur­rent FHFA act­ing head and the un­cer­tainty sur­round­ing Watt’s nom­in­a­tion clouds the policy pic­ture that his or­gan­iz­a­tion is so tied to.

Less time spent on nom­in­a­tion fights also would free up time for ac­tu­al le­gis­la­tion. Sure, it might not mean more le­gis­la­tion will be passed, as that surely isn’t get­ting easi­er any­time soon. But more time could mean more bills, which would help free ex­ist­ing bills from a nev­er-end­ing bar­rage of amend­ments. In the fili­buster-everything Sen­ate, “so few bills come to the floor that every­body views each bill as the last life­boat get­ting ready to sail off in­to the ho­ri­zon,” former Sen. Murkowski staff dir­ect­or McK­ie Camp­bell re­cently told Na­tion­al Journ­al. That res­ults in loads of pet policies get­ting tossed onto bills, of­ten doom­ing the whole pro­ject (see: the re­cent en­ergy bill). By open­ing up the cal­en­dar, the Sen­ate could have time for a few more life­boats, help­ing bi­par­tis­an bills ac­tu­ally get passed.

And get­ting stuff passed is ex­actly what Amer­ic­ans would like to see. People may not agree on what they want the Sen­ate to turn in­to law, but in a re­cent Gal­lup poll, 59 per­cent of re­spond­ents said they were peeved with par­tis­an grid­lock and gen­er­al con­gres­sion­al in­ef­fect­ive­ness.

Cer­tainly, the post-nuc­le­ar Sen­ate won’t be too ef­fi­cient. The le­gis­lat­ive fili­buster will live on. And there’s no real reas­on to think that your mild-mannered sen­at­or will des­cend in­to curd­ling, le­gis­lat­ive mad­ness just by eas­ing up on ex­ec­ut­ive nom­in­a­tions. “I don’t buy the ar­gu­ment that the Sen­ate would look like the House,” says George Wash­ing­ton Uni­versity pro­fess­or and Sen­ate-afi­cion­ado Sarah Bind­er.

The rule change also won’t mean that Obama can just nom­in­ate any­one he’d like to ex­ec­ut­ive po­s­i­tions. When sen­at­ors are really, truly con­cerned about a nom­in­ee, they can kill the con­firm­a­tion without re­sort­ing to a fili­buster. Take the case of Ron Binz, Obama’s nom­in­ee to the Fed­er­al En­ergy Reg­u­lat­ory Com­mis­sion. Binz’s nom­in­a­tion was with­drawn this fall after he en­countered bi­par­tis­an dis­ap­prov­al be­fore mak­ing it out of com­mit­tee.

Even if Obama did de­cide to nom­in­ate Bill De Bla­sio as his Sec­ret­ary of Re­dis­tri­bu­tion, that could be a good thing for our polit­ic­al sys­tem. “If we deny the pres­id­ent the right to pick the people he feels he needs,” says former Utah Re­pub­lic­an Sen­at­or Bob Ben­nett, “then we are say­ing we can’t hold him ac­count­able.” De­fer­ring to the pres­id­ent for most nom­in­a­tions puts the op­pos­i­tion in a po­s­i­tion to be­ne­fit from mis­steps.

There are ob­vi­ous un­knowns about what a post-nuc­le­ar Sen­ate would really look like. It’s com­pletely pos­sible that there could be new ter­rible pro­ced­ures to re­place the old ones. But with the Sen­ate so mired in grid­lock, there’s no reas­on not to try and blow things up.

Michael Catalin contributed to this article.
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