The New York Times yesterday highlighted two of the more recent ways that Republicans have manipulated loopholes in Senate rules to delay confirmation of Secretary of Labor nominee Thomas Perez and Environmental Protection Agency nominee Gina McCarthy. It’s worth stepping back and realizing: what’s happening here is that Republicans are delaying these nominations beyond their eventual insistence that almost all nominees must get 60 votes. In other words, they’re filibustering on top of their own filibusters.
That’s just two examples. There are numerous others; again, with virtually all nominees required to have 60 votes, one can accurately say that Republicans are filibustering every nomination. But perhaps the worst are the “nullification” filibusters, in which Republicans simply refuse to approve any nominee at all for some positions — the National Labor Relations Board, the Consumer Financial Protection Bureau — because they don’t want those agencies to carry out their statutory obligations.
In doing so, Republicans are not breaking the rules of the Senate. They are, however, breaking the Senate itself, and harming the government. As with all legislative chambers, and in fact all democratic institutions, the Senate runs on a combination of formal rules and informal norms. But Republicans, by refusing to accept those norms, make it impossible for the normal machinery of government to function.
And remember that this is entirely unprecedented. Until very recently, simple majority confirmation was the norm on executive branch nominations with only a handful of exceptions. Not only that, but both Democrats and Republicans agreed that in almost all cases presidents were entitled to their choices when it came to these posts.
As I’ve said before, the only recourse for the majority — and recall that Democrats enjoy a 55-seat duly elected majority in the Senate — is to threaten to change the rules if Republicans continue, and then carry out that threat with majority-imposed reform to end filibusters on executive branch nominations altogether. But that would be a loss for the Senate if it had to happen. It’s not a bad thing at all to give the minority party a larger role in the process, and filibusters are part of that; but if filibusters become routine instead of used only for those things the minority objects to the strongest, then the majority will have little choice.
Yes, I know that in the way Washington works, this kind of routine disruption of normal government procedures doesn’t qualify as a Scandal! But it should. And while it’s quite proper for those concerned about good government to be outraged by the IRS story, this one is a much bigger deal, and the facts of it are plain for all to see — in fact, the people responsible are openly bragging about what they’re doing.