July 15, 2013

For years now, the Republican position on the National Labor Relations Board and Consumer Financial Protection Bureau has been what Tom Mann dubbed “nullification” — stop the agency from functioning by refusing to confirm anyone.

Harry Reid (J. Scott Applewhite/Associated Press)
Senate Majority Leader Harry Reid (J. Scott Applewhite/Associated Press)

That’s something that no White House with a majority in the Senate can live with.

The GOP position, however, seems to have shifted a bit. Now Republicans, led by Mitch McConnell, are claiming that their problem is with the specific nominees Barack Obama has sent up for those spots. Specifically, they have a process complaint — that Obama gave them “illegal” recess appointments.

As a position, that’s entirely without merit. There’s nothing about the fact that they were once recess-appointed (properly or not) that turns otherwise good nominees into lemons; it’s pure spite from Republicans. Especially since Obama has been unusually reluctant to use his recess-appointment power and only did in these cases because of clear, explicit, nullification filibusters.

Nevertheless … as long as Republicans assured Senate Majority Leader Harry Reid that they would allow replacement nominees for the  National Labor Relations Board to pass by majority vote, it wouldn’t be a bad idea for Reid to accept that offer. The overwhelming principle at stake in this fight is nullification. There is a second, important, principle — that presidents should normally get to choose the people they want — and I do believe that the best standard on executive-branch nominations is a simple majority vote, not 60. But out-party opposition to the occasional nominee on whatever grounds it cares about is legitimate, and if every once in a while it can stop a particular nominee even without a majority, it’s not a disaster.

My assumption is that Reid has the votes to go nuclear if necessary, but he would rather cut a deal. That deal absolutely has to put an end to minority-party nullification, and it really should end the presumption of 60 for all executive-branch picks. I’d rather get a deal to get supermajority support for simple-majority cloture on those executive-branch nominations, but barring that, allowing every position to be filled, even if Obama has to go to his next options on a couple of them, doesn’t strike me as a disaster.

Given that Richard Cordray is already the administration’s second choice (after now-Sen. Elizabeth Warren) for the Consumer Financial Protection Bureau, he should be confirmed as part of any deal. But if the White House has to go back once more for the NLRB spots, I don’t think that should be a deal-breaker for Reid — as long as Republicans are willing to live with whichever replacements Obama chooses.