- The Washington Times - Thursday, July 11, 2013

Senate Democrats laid the groundwork Thursday to trigger the “nuclear option” against minority filibusters, setting up a dramatic Tuesday showdown in which Republicans either will have to accept seven of President Obama’s controversial appointments or watch as Democrats change the rules and end filibusters of executive branch nominees.

The move would fundamentally alter the balance of power between the White House and the Senate and would give the president more latitude to put his team into place. But it also would aggravate a contentious atmosphere in the Senate and dim prospects for bipartisan agreements this year, with spending, debt and immigration fights still simmering.

Senate Majority Leader Harry Reid, Nevada Democrat, said at the beginning of the year that he would not use the option.

He changed his mind Thursday after Minority Leader Mitch McConnell, Kentucky Republican, broke his side of an agreement by delaying confirmation of some of the president’s nominees.

“A deal is a deal, a contract is a contract, an arrangement is an arrangement, a bargain is a bargain, as long as each party to such an agreement holds up his end of the bargain,” Mr. Reid said in a morning floor speech.

Republicans warned that they could retaliate easily if they reclaim the majority by ending other filibusters, which would let them push through their own priorities without fear of minority obstruction.

“These are dark days in the history of the Senate,” Mr. McConnell said. “I hate that we’ve come to this point. We’ve witnessed the majority leader break his word.”

Mr. Reid, for the moment, was only forcing a confrontation on executive branch and independent agencies, not judicial nominations or legislation.

Democrats pioneered partisan filibusters of judicial nominees under President George W. Bush, but both parties have long histories of filibustering each other’s executive branch appointments.

Still, Democrats said Republicans have taken the tactic of talking legislation to the extreme in order to gum up government as part of their anti-Washington agenda.

Each side cites statistics to back up its case. Democrats point to the number of nominees where Mr. Reid has forced votes to end filibusters. Republicans say all of Mr. Obama’s nominees eventually have been approved — including John F. Kerry as secretary of state, who was confirmed in seven days.

Mr. Reid has set up filibuster votes for Tuesday for seven nominees: for Labor Department secretary, Environmental Protection Agency administrator, three members of the National Labor Relations Board, the president of the Export-Import Bank and the director of the Consumer Financial Protection Bureau.

Republicans asked for a bipartisan meeting of all senators to air out the issue and try to reach an accord. Mr. Reid agreed, though he scheduled the meeting for Monday evening. Republicans said that doesn’t leave much time to change minds.

The term “nuclear option” refers to changing the rules by a majority vote, rather than the two-thirds vote the Senate usually requires — a rule that guarantees the minority certain rights that have defined the chamber throughout its history.

If Republicans filibuster the nominees, Mr. Reid likely will ask for a parliamentarian ruling on whether the filibuster is legal. Based on Senate history, the parliamentarian will rule that it is, and Mr. Reid will move to overturn that ruling — which requires a simple majority and sets official precedent.

Republicans have been slow-walking or outright blocking many of Mr. Obama’s nominees, but they signaled Thursday that they would be willing to relent and allow votes on most of them.

Mr. McConnell said the only nominees he was reluctant to approve speedily were two NLRB nominees and the consumer bureau nominee — each of whom Mr. Obama has installed to temporary appointments using his recess powers. A federal court ruled that the maneuver violated the Constitution.

It takes only a majority vote to approve a nominee on a final vote, but the minority is allowed to filibuster to prevent that final vote, and it takes 60 votes to end the filibuster.

The increasing use of filibusters — or even their threat — has shifted power from the president, whom the Constitution gives the right to nominate officers of the United States with the “advice and consent” of the Senate.

Mr. Obama tried to regain some of that power by using his recess appointment powers in an unprecedented way. He appointed members to the Consumer Financial Protection Bureau and the National Labor Relations Board even though the Senate didn’t consider itself in recess.

Two federal appeals courts have ruled that Mr. Obama’s NLRB appointments violated the Constitution. The Supreme Court said last month that it would hear one of the cases, and the ruling could dramatically circumscribe the president’s power.

Mr. Reid waited until after he cleared a major immigration bill through his chamber to raise the filibuster issue, knowing it would be so contentious that it could have ruined his chances to win the bipartisan vote on that bill.

Republicans contemplated using the nuclear option in 2005 to end Democratic filibusters of judicial nominees, but backed off after a bipartisan “Gang of 14” senators struck a deal that preserved the filibuster in limited circumstances.

That deal held for several years but has since dissipated.

Not all Democrats are onboard with Mr. Reid’s move.

“My position has been the same since the Republicans tried to jam judges in 2005 and we stood up against it and said, ‘You shouldn’t be changing the rules by breaking the rules and almost every Democrat spoke against it,’” said Sen. Carl Levin, a senior Democrat from Michigan.

But with 54 Democrats in the chamber, Mr. McConnell said, he expects Mr. Reid to be able to find the 51 votes he needs to force the rules change.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Seth McLaughlin can be reached at smclaughlin@washingtontimes.com.

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