Tuesday, July 16, 2013

Today Is Apparently Not a Good Day to Die

...in a Senate nuclear war, that is. We seem to have a tentative deal. According to various reports (here's Greg's) and tweets, it appears that the deal involves:

(1) Cordray gets cloture, ending that nullification battle

(2) The other "regular" nominees (EPA, Labor) get cloture

(3) The NLRB nominees are withdrawn, and replaced; the new nominees get cloture in time to be in place by the time they're needed for NLRB to function

(4) No specific promises or commitments for the future; Reid retains the possibility of going nuclear later in the Congress if nomination obstruction continues.

If that's what's happening, it's very close to a total victory for Reid and the Democrats. Yeah, they hve to give up Barack Obama's picks at NLRB, but (again, if the reporting is correct) he'll jut replace them with other people. Nullification will be dead. And routine filibusters on exec branch nominees may be dead, too.

Basically, this is the deal that I said yesterday that Reid should take. Yes, the idea that the "illegal" NLRB nominees shouldn't get confirmed as normal nominees doesn't make any sense. But so what? Nothing major is at stake there (Democrats are not conceding the recess appointment argument by switching nominees), so if that's what Republicans need to save face, it's not a bad deal.

And you're going to see lots of liberals saying that a deal is a disaster because Republicans won't live up to it, but in my TAP column today I say that's a myth.

As I write this, the vote on Cordray is finishing up, with plenty of votes for cloture. This is a pretty solid victory for the Democrats, and one that basically is the result of GOP overreach: if they had used filibusters far more selectively, my guess is they could have got away with this one, as unjustifiable as it may be.

More later, I suspect, when more details are available.

20 comments:

  1. So the Senate still needs 60 votes to blow its nose. Seems like a victory for Republicans to me.

    What, again, is the supposed advantage to Democrats for not going nuclear? Because I don't see it. I guarantee that Republicans will go nuclear as soon as they get the Senate.

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    1. I don't know if it's an "advantage" per se, but functionally, a 60 vote Senate where the Republicans agree to cough up the 5 extra votes isn't really any different from a majority-vote Senate. And when Republicans stop giving those 5 votes, Reid has retained the ability to change the rules again (And his hand is probably stronger with reluctant Dems). It's kind of an okay cake-and-eat-it-too situation- Reid gets the substantive action he wants, and probably an easier time doing this again if he doesn't get some future action.

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    2. "I guarantee that Republicans will go nuclear as soon as they get the Senate."

      I keep hearing that, but I see no evidence of it. If the GOP gets a 51-49 majority in 2014, do you really think the thought that they will probably lose it in 2016 (when 24 Republicans are up--including some from Illinois and Pennsylvania and Wisconsin which have voted Democratic in six presidential elections in a row--compared to only 10 Democrats, all from states carried twice by Obama by substantial margins) will never occur to McConnell or any other of the Republicans?

      And even if McConnell thinks it's worth the risk, just one GOP defector (Murkowski? Collins?) would be enough to prevent it. What can they do to Murkowski if she doesn't go along? Threaten to primary her in 2016? As she showed in 2010, she can win as an independent candidate--even with a write-in campaign! Collins will likely be starting her last term, so they can't really threaten her, either.

      Anyway, Reid is getting the confirmations he wants now without even ruling out using the nuclear option later. That hardly looks like a sell-out to me.

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    3. Furthermore, going nuclear won't even help the GOP much in 2015. Let's say it lets them get ACA repeal through the Senate. What good will that do them, since Obama obviously will veto it?

      Of course if the GOP wins *both* the White House and the Senate in 2016, they will repeal the ACA, but they don't even need the nuclear option to do that. All they need to do is to rule that the ACA was a tax law--after all, that's the basis under which Roberts upheld it!--and therefore not subject to the filibuster.

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    4. @Purusha, you're wrong. The GOP blinked first. Cordray will keep his position and get the official approval. The two less controversial appointments will also go ahead by a set date in August. The GOP filibuster has been broken.

      The GOP gave up its blocking tactics for today, and they're weaker if they try it again. McConnell's bluff that he'd go triple-nuclear didn't scare off the Dems. If wasn't for the replacement nominees at NLRB, it would be a total loss for McConnell.

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    5. Ideally, Pres. Obama should nominate more liberal candidates as replacements.

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  2. "And you're going to see lots of liberals saying that a deal is a disaster because Republicans won't live up to it[...]"

    A Trust-But-Verify stance from liberals seems in order, at least...

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  3. I strongly suspected this would be your take on the analysis. And I agree with you, although there's going to be a lot of harping on liberal blogs. At least Reid didn't give up the right to 'go nuclear' in the future of Exec Branch nominees. I don't take the Republicans at their word that they won't filibuster the NLRB nominees, so hopefully the agreement to get them a vote is ironclad.

    Although, I do wish that it gets codified in the rules that all Executive branch nominees only require a majority vote for confirmation and can't be filibustered. Maybe next congress... or when the Republicans take the Senate with the Presidency.

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  4. How in the world could Reid "give up the right to go nuclear" in any kind of enforceable fashion? Literally, the filibuster exists at the discretion of the majority. It is a Senate rule like any other.

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    1. If he made a commitment not to go nuclear, it would be hard for him to back off from it, especially since a number of Democrats who aren't that enthusiastic about the nuclear option anyway would use Reid's promise as an excuse to oppose it.

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  5. Sounds like the R's just wanted to make their point, that the 2 allegedly recess NLRB appointments would have to be dumped, following the court's exposing of that scam.

    It would likely be best if this filibuster nonsense was eliminated. It's just a screen to protect electorally vulnerable senators, at this point. Better to force their hand.

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    1. Yeah. Losing the two specific nominees is cover. This way, they can pretend they were filibustering because there was something about the nominees, rather than a desire to nullify the the board.

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    2. I think it was more that they thought Obama had no grounds for a recess appointment, as the court agreed.

      I don't think anybody cares about any of those other nominees, it was only the NLRB that seemed of interest.

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    3. I think it has to go back further, however. The reason a recess appointment was needed was because of the filibuster. By blocking the specific nominees (who, fill me in here, might have changed over time... I don't know), that justifies the filibuster, which created the need for recess appointments, which lead to the not-quite-recess tactics, which lead to a bizarrely pedantic decision (the meaning of the word "The"...), etc.

      Filibuster is how the ball got rolling in the first place. If the Republicans have to admit there was no grounds to filibuster the nominees in the first place, the entire debacle collapses upon them. Not that anyone except we few wonks cares, but still.

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    4. I think the GOP aim was to eliminate the NLRB, de facto, by filibustering all appointments and preventing the board from having a quorum. The recess appointments (a practice that has been around for about 170 years) got around that, and that's why they didn't like it. Their view will change again when their president is making the appointments.

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    5. Well, if they wanted to eliminate the NLRB, they'd defund it, and still be blocking its staffing. They don't appear to be doing that.

      These recess appointments were blocked by the court, so apparently they haven't been around for 170 years.

      It does appear to have been about those NLRB appointments solely, and now that those were swept away, it's business as usual.

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    6. Anon --

      The circumstances under which the NLRB recess appointments happened were in fact unusual and new.

      However, the Appellate decision knocking them out would in fact have invalidated every recess appointment going all the way back to the very first ones. And since the court found all recess appointments to be unconstitutional, it didn't even get to the particular unusual circumstances of the NLRB picks.

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    7. Not sure why that's to be considered relevant, but whatever. You should be careful with the jailhouse lawyering, I might add.

      The practical matter here is that those recess appointments were at issue in this kerfuffle, solely, it seems quite evident. And now that they're out of the way, the great deliberative body that is the US Senate has returned to its previous magnificent ways. It is as it was.

      Too bad. I was hoping that filibuster nonsense would get jetisoned. It seems past its shelf life now.

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  6. I agree that is a really minimal price to pay for effectively eliminating the routine filibuster of executive nominations (and for all I know Obama will actually prefer his new NLRB nominations over the old ones, now that he is more or less guaranteed to get them a straight vote).

    Incidentally, I can't imagine that is really the outcome that the Republican leadership wanted, and I think McConnell in particular looks pretty weak, at not a great time for him in his electoral cycle. But I guess they just got sold out by the McCain-led group.

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  7. Not a sunday question for liberals obv, but I give this a thumbs up, both for the immediate results and for how things ought to shape up in the future.

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