February 15, 2013

Chuck Hagel will, in all likelihood, eventually be confirmed. But that won’t do a thing to change the fact that this whole affair shows the need for Harry Reid to revisit, or at least threaten to revisit, filibuster reform.

That’s because even if Hagel does finally win confirmation, the problem will still be with us. Other nominees to other positions aren’t going to be so lucky. And that’s not just bad for Barack Obama or the Democrats; it’s bad, very bad, for proper administration of the government. And it’s even bad for the Senate.

For instance, Republicans are currently blocking Richard Cordray, the nominee to head the Consumer Financial Protection Bureau. Without a director the CFPB cannot carry out its responsibilities. Filibustering Cordray is a lot easier than repealing the law that created the CFPB over Democratic objections. So they’re filibustering.

In other words, Hagel or no Hagel, we’re going to keep seeing more of these “nullification” filibusters: GOP efforts to keep agencies from functioning as required by law by refusing to allow anyone at all to be confirmed.

Beyond those types of cases, any executive branch or judicial nominee can be defeated by filibuster if Republicans stay united and insist on a 60 vote standard. And perhaps the one thing that was made very clear by Republican Whip John Cornyn and others during the Hagel debate is that Republicans indeed believe in that 60 vote standard, and are willing to extend it to every single nomination. That doesn’t mean every nomination will fail, because not all Republicans oppose every Obama nomination. It does mean, however, that as long as there are “only” 55 Democratic Senators, that Harry Reid is going to have to always find 5 Republicans to go along.

That’s just not how the constitutional “advise and consent” responsibility is supposed to work, and it’s not how it ever worked before 2009.

The reform package both parties agreed to in January promised to help on one key category of nominees: those who had fewer than 40 opponents. For them, reform is supposed to expedite the process. But reform didn’t do anything at all about nominees who have simple majority support, but not 60 Senators behind them. If the Hagel nomination is a sign that we’re going to see more and more of these partisan filibusters, then Reid and the Democrats will have no choice but to revisit Senate reform — during the current session of Congress — and find some way to get those nominations confirmed and the government fully up an running.

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