The Filibuster Fight Is Back

The Filibuster Fight Is Back

For the first time since before the Civil War, the Senate rejected a sitting member of Congress for a cabinet post. 


You may recall that the standoff before the last standoff in the Senate (or was it the one before that?) involved a raft of nominations that Republicans refused to let through, as had been their practice for all of the Obama administration. In July, majority leader Harry Reid threatened to invoke the so-called “nuclear option” if the seven nominees were not allowed an up-or-down vote.

Republicans blinked: they allowed each nominee a vote (though two had to be switched out, for face-saving purposes) and crucial posts at the Consumer Financial Protection Bureau and the National Labor Relations Board were filled. Reid’s “confirm these nominees or else” position naturally led to no “or else”—the rules on filibusters remained unchanged. But he declared that a “new normal” had been achieved in the Senate, where qualified executive branch nominees could now receive up-or-down votes.

Many were skeptical that the GOP saw things the same way; some people (ahem) predicted that when Mel Watt came up for a confirmation vote to head the Federal Housing Finance Agency, the “new normal” would evaporate.

Indeed, on Thursday afternoon, Watt’s nomination was blocked. Only two Republicans joined Senate Democrats on the cloture motion, producing 56-42 vote in favor of moving forward. Alas, sixty votes are needed under the current rules. Shortly afterwards, a cloture motion to allow Patricia Ann Millett a confirmation vote for the crucial DC Circuit Court also failed, 55-38.

It is crystal clear that Senate Republicans do not believe Watt is extraordinarily unqualified to be the head of the Federal Housing Finance Agency—that would be a traditional situation in which to wield the filibuster.

No, as virtually everyone involved in the situation understands, Republicans simply disagree with Obama’s policy on housing, and would prefer that current FHFA head Edward DeMarco stay in office. Even straight news stories, like this one in USA Today, accept this: “Senate Republicans opposed Watt’s nomination because they prefer the policies advanced by DeMarco.”

But that’s not what the filibuster is for. No sitting member of Congress has been rejected for a cabinet post by the Senate since 1843. No senator has raised substantial complaints with Watt’s qualifications—some, like Senator Bob Corker, say they would prefer a technocrat and not a politician hold that position. That’s odd, considering that the first time around, Obama nominated a true technocrat in North Carolina Banking Commissioner Joseph Smith, whom Republicans also blocked. (Corker, however, did vote for Smith's nomination on the Banking Committee.)*

So the question now is whether Senate Democrats will once again threaten the nuclear option. Tentatively, signs point to yes.

The senators at the center of this summer’s nuclear option fight are already renewing calls for reform. “This is a war on the other two branches of government and their ability to do the jobs the American people need them to do,” said Senator Jeff Merkley in a statement. “The Senate rules must change.”

“The pattern of ‘obstruct and delay’ has returned as the norm in the US Senate with today’s filibuster of two highly qualified nominees,” Senator Tom Udall said in a statement. “It proves once again the need to reform the Senate’s rules.” Senator Patrick Leahy also called for a rules change.

Reid issued a less aggressive statement, but did say he would bring the two nominees up for a vote again soon, and attached what is clearly a threat about rules reform. “I hope my Republican colleagues will reconsider their continued run of unprecedented obstructionism,” he said. “Something has to change, and I hope we can make the changes necessary through cooperation.”

It’s certainly possible, or even likely, that this standoff will be resolved the same way it was this summer: Democrats will make a credible rules change threat, and Republicans will relent and let the nominees in question through. It’s not an ideal way to run the nominations process, though perhaps the end result would be the same. But if Republicans don’t let these nominees through, Democrats may finally pull the nuclear trigger—and only a few years too late.

*This story has been updated to reflect the fact Senator Corker did support Johnson's nomination in committee. 

Now is not the time for Democrats to cater to the GOP’s obstructionism.

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