January 25, 2013

Yes, wide-ranging Senate reform attempt fizzled yesterday. But the next step for Democrats is to keep the possibility of reform alive in the event that the proposals that have been adopted don’t work, and record-breaking Republican obstruction continues.

The news today that the D.C. Circuit Court stripped presidential recess appointments out of the Constitution make it more important than ever for Democrats to use the leverage they have to keep the government functioning.

The appeals court ruled not just that the controversial Barack Obama recess appointments to the NLRB, but virtually all recess appointments as they’ve been practiced for over a century, are no longer constitutional. Of course, the Supreme Court will have to weigh in on this. But it’s a good reminder that in a game of checks and balances, you need to keep all your weapons available.

Now, it’s certainly possible that Republicans will react to the deal on the filibuster, and perhaps to Obama’s re-election, by backing off on filibustering executive branch nominees. Or at least many executive branch nominees. But if they continue to obstruct, then Democrats are perfectly free to revisit what they did yesterday.

Remember — contrary to what you may have heard, it is absolutely possible for Democrats to impose rules changes by majority vote whenever they want. Not just on the first day of a Congress.

If there’s a fight during this Congress, it’s going to be on nominations; Democrats don’t really care much about Senate filibusters on legislation because anything that can get through the GOP-controlled House will be able to get 60 votes in the Senate in any case. But on nominations, the minority in the Senate can block them. And if recess appointments are really gone (again, pending whatever the Supreme Court decides), then the main weapon Democrats have remaining is the threat of changing the rules.

So it’s very simple: Republicans can threaten to filibuster all they want; but Democrats can fight back by again threatening to get rid of the filibuster. And, if the reforms passed yesterday turn out to be inadequate to rein in obstruction, then there’s no reason for Democrats to wait two years before trying again.

*********************************************************

UPDATE: An explanation for why Dems can change the rules in mid-session is right here. The link has also been added above.