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.
A Post-Nuclear Senate Would Be a Wasteland
Limiting the minority’s power to filibuster might ease a nominee’s path, but it won’t end dysfunction. It will make it worse.
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