Now that former Montana Governor Brian Schweitzer is not running for Senate, Nate Silver and others are predicting the GOP’s odds of taking back the Senate have improved markedly. Does that weaken the case for doing away with the filibuster on executive nominations, if necessary, on the theory that Dems will regret the move once Republicans are in control?
Not at all. This is about making the Senate functional — whoever is in charge. Indeed, that is the very premise driving those who would reform the Senate — such as leading Senate progressives Jeff Merkley and Tom Udall.
“This is about going to a simple majority on executive nominations,” Merkely, a leading proponent of Senate reform, told me today. “I support that whether I’m in the majority or in the minority.”
There’s been a fair amount of chortling on the right today about the confluence of two things: first, the mounting signs that Republicans could take back the Senate; and second, that Harry Reid really may make good on his threat to change the rules. But for would-be Senate reformers, much of this is beside the point. Reform is about rendering the Senate more democratic, which means that the question of who the voters put in charge of the Senate is irrelevant to the question of whether to pursue reform.
“It’s very important that we not have a situation where a minority of the Senate can essentially impair the functioning of the other two branches of government,” Merkley says. “That’s not advise and consent. It’s obstruct and destroy. Those who care about good government — about making government work better — should want to make these sorts of changes.”
Senator Tom Udall, another leading reformer, agrees. “I do not believe the Constitution gives me the right to block a qualified nominee — no matter who is in the White House,” Udall will say in a speech later today, per his office. “I do not believe the Constitution gives me the right to block a qualified nominee — no matter who is in the White House. I say that today, and I will say it if I am in the minority tomorrow.”
To be sure, some are making the case that the way Reid is changing the rules — by simple majority, i.e., the dreaded “nuclear option” — is part of the problem. This could set a precedent for the GOP to do away with the filibuster entirely.
There is something to this case, and in some ways, a last minute deal defusing the confrontation would be preferable. But ultimately, if Republicans won’t lift their blockade on key Obama nominations — Harry Reid reiterated today that they must allow seven high profile nominations to proceed or he will hit the nuke button — that leaves Dems with a choice: Either they accept the GOP’s success in grinding key agencies to a halt, or they act. And as Merkley put it to me, what we currently have is “form of paralysis” that leaves acting as the only alternative.
“The best precedent we can set is to make the Senate work,” says Merkley, who also supports getting rid of the filibuster on conference and the institution of the “talking filibuster” on legislation. He added that changing the rules on executive nominations does not make a future decision by the GOP to change them on legislation any easier: “I don’t think this sets a precedent on legislation. Each majority has to weigh whether or not its gong to change the rules.”
In a sense, the bickering over the nuclear option obscured what this whole argument is really about. This isn’t as much about the propriety of changing the rules by simple majority as it is about a simple question: should a minority have the power to impose a 60-vote threshold on the Upper Chamber for the explicit purpose of nullifying the functioning of democratically created government agencies? After all, that’s what Republicans are currently doing. Oddly, the question of whether this is acceptable – not to mention the question of whether doing away with the filibuster on executive nominations is a good idea under the circumstances or even a reasonable response to them — have been largely missing from the discussion.
But as Merkey and Udall note, on the merits, the answer to these questions is obvious. And their importance mostly renders the question of who will control the Senate irrelevant.