Friday, July 12, 2013

The Senate is On the Brink of Becoming Functional

Gerard N. Magliocca

The Majority Leader announced yesterday that he is ready to change the rules to end filibusters on executive branch nominees unless the Republicans vote for cloture on many of the President's pending nominees (including his picks to the National Labor Relations Board who, if confirmed, would almost certainly moot the Supreme Court's review of the recess appointments in Noel Canning).  The Senate is going to have a group therapy session in the Old Senate Chamber on Monday night that may result in a deal, but something is going to give.

In the classic British series Yes, Prime Minister, some civil servants explained that politicians rely on the following syllogism to make decisions:

1.  Something must be done.
2.  This is something.
3.  Therefore, we must do it.

That is the essence of the Majority Leader's proposal.  He is right that something must be done about the Senate filibuster.  Simply saying that any executive branch nominee can be confirmed with 51 votes, though, is not the right answer.  That provides no guarantee of scrutiny by the minority party.  Such a rule could be administered with the informal understanding that a nominee must appear before the relevant committee and that the minority party would have a period of time to ask questions and review documents, but it could also be used to ram people through without any process at all.

A better proposal (that I've talked about before) would be to put a time limit on the consideration of executive branch nominees.  (I would go further and include judges, but that's not going to happen now.)  Say six months from nomination to the final vote.  In other words, the minority in the Senate, much like the British House of Lords, should only have the power of delay, not an absolute veto.

UPDATE:  On Volokh, John Elwood has an interesting analysis arguing that the confirmation of the NLRB appointees would not moot Noel Canning.


"Simply saying that any executive branch nominee can be confirmed with 51 votes, though, is not the right answer."

That isn't going to happen. The candidates are still going to "appear before the relevant committee and that the minority party would have a period of time to ask questions and review documents."

When it will be "used to ram people through without any process at all" in any consistent way, get back to me. Seriously. do you think that actually is going to happen? The response here is not somehow out of the blue nor will the resulting process going to be applied by sorts who would be so willy-nilly. Democratic senators for one thing will not accept such lack of power to review certain nominees that concern them for some such reason.

The time limit proposal is a fine one, but we don't need to assume things that won't happen to help guide us to that point.

One reason, btw, it won't happen is there are procedural means to gum up the works if such a thing is tried. Not that I'm holding my breath regarding the rules being changed anyway. The football was moved away enough times, thank you Lucy.

It doesn't have to be consistent. The mere fact that it would possible is a problem.

After all, there used to be an "understanding" that executive branch nominees were not filibustered.

It is "possible" as a matter of raw power now. Lots of things are "possible." It matters more on what is likely, including when determining the "essence" of his proposal.

Also, do you have a link to the proposal in question or any discussion of what it means, including the understanding that regular committee review of nominees will be skipped when 51 senators say so?

When you say it will moot Noel Canning, what would be the exact mechanism?

If the Senate confirms a nominee to a particular body, surely that doesn't retroactively legitimate an otherwise illegitimate recess appointment? Wouldn't it take legislation to do that, legislation that surely would not pass the House?

Or do you think the Court would just summarily remand with orders to re-remand back to the now fully staffed Board?

The Democrats have made this threat multiple times in the past and never carried through. I wonder if they even have a majority from their own caucus who would vote to give up this power. After all, majorities come and go.

The Democrats would be fools if they retained the filibuster so that they could use it if they are in the minority one day. This is because they would not use it, except on rare occasions. The reason they would not use it may be labeled as wimpishness, as wanting to play by the unwritten rules, as wanting the government to be able to function--whatever you label it, they are just not willing to play as dirty as the Republicans, and they ought to recognize that.


Consider the following scenario the Dems are facing:

The Senate is filled with Dems who represent states purple to red states run by the GOP. They could very well lose the Senate in the next two cycles, especially if this depression drags on.

If we follow the general pattern over the past quarter century, after a two term president, the White House goes back to the other party.

Now you have a GOP president who may be appointing Ginsberg's successor with a maybe a pro life conservative.

Is losing the filibuster worth packing the NLRB and the DC Circuit???

Bart, how about retaining the filibuster only for Supreme Court justices, or only for all lifetime positions? For such positions, the identity of the President's party should matter less than it does for executive branch positions. Better yet, amend the Constitution to limit justices' terms, but that's another matter.

"Permission" for a six-month delay simply guarantees more dysfunctionality in staffing the Executive branch, already at a high level because of the ridiculous time spent with FBI checks and the like. Let the majority ram through whomever they want. If they are problematic appointees, we can count on the press, especially these days, to bring their deficiencies to our notice and put pressure on the President to fire them.

Incidentally, I do think the strongest justification for the filibuster is with regard to lifetime appointments. But there is no justification, zero, nada, for allowing the minority to filibuster ordinary presidential appointments, especially if they can in fact make recess appointments. After all, John Bolton did get to the UN, in spite of a Democratic filibuster.


If there was a time limit, almost no filibusters would occur. It would be pointless.

Henry said...Bart, how about retaining the filibuster only for Supreme Court justices, or only for all lifetime positions?

I personally would get rid of the filibuster altogether. The Constitution creates a very nice set of checks and balances requiring an effective supermajority to enact substantial change. Adding a filibuster to that is a bit much.

I was merely expressing my doubts that either party in the Senate really wants to get rid of that power.

There are a number of possible reforms to Senate rules that might improve the confirmation process and/or enhance the Senate's authority to give "advice" as well as "consent." But the issue at hand is not whether some reforms would be desirable; it is whether a simple majority can legally change the rules. Professors Magliocca and Levinson told the Senate in December that the majority could only change the rules on the first day of the new Congress. A number of senators professed to believe this at the time. Is this legal position now "inoperable"?

Nobody is "packing" any court or regulatory body. The President is STAFFING, exercising his Constitutional responsibility. The Senate is refusing to engage in their responsibility, and using demagoguery to deflect blame for their intransigence. All nominees deserve a full hearing and an up or down vote. The filibuster is repugnant to the Constitution, in that it inserts a supermajority requirement when the Constitution has not required it.

I agree with Bart on both his points. If I were designing our governmental framework I would not have something like the filibuster. Having said, the Democrats would be a bit nuts to get rid of it especially now when they are facing an election with great potential to flip the Senate.

Don Smith said: Nobody is "packing" any court or regulatory body. The President is STAFFING, exercising his Constitutional responsibility.

A president can constitutionally pack a court or agency with his or her cronies.

Ever since the voters fired the Democrat House and the Democrat Senate did their best to avoid voting on progressive legislation to get reelected, Obama has largely ruled by decree through the bureaucracy.

When he unconstitutionally packed it the first time with union hacks, the NLRB imposed by fiat what the Democrats refused to do in Congress or most states.

With a divided elected government, the only check on the bureaucracy has been the courts, primarily the DC Circuit. Thus the bid to load up that circuit with judges who will rubber stamp bureaucratic decrees.

The Senate Democrats would not be making all this noise to intimidate the GOP unless these appointments were important to achieving their goals.

The Dems are not trying to end the filibuster here. They are trying to ease the way for non-judicial nominations. As Prof. Levinson noted, even John Bolton got his job. Dems managed to block a few judicial nominees. Big deal.

The end of the filibuster totally might matter, though even there it is hard to see how much good that did during the Bush Administration. Likewise, the people seem to be sick of how things are going in D.C. Supporting delay is unproductive in the long run.

It is "legal" to change the rules. The text of the Constitution gives each body the right to set rules of procedure. There is a common law practice of doing it a certain way, but such practice by design and practice develops over time, including as practice changes around it. Things are "professed" and then things change.

The letter referenced doesn't actually clearly say they "cannot" change the rules & with respect I don't think that is Prof. Levinson's at least position.

It said:

"The standing two-thirds requirement for altering the Senate’s rules is a sensible effort at preventing changes to the rules in the midst of a game."

It was supported as a "sensible effort" which is a curiously flexible way to say it is "illegal" not to do it.

In that understanding, practice is cited: "The two-thirds rule is constitutional to the extent that it ensures Senate procedures will not be manipulated during a legislative session to the detriment of the minority."

But, what does that mean? Reid et. al. argues that the minority abused its privilege. It therefore would not be "detrimental" to alter the rules in the way suggested as a means of redress.

The whole thing is a matter of prudence and a political question for the Senate to decide. The term "illegal" is being used somewhat loosely. If anything, e.g., it might be deemed "illegal" to block NLRB nominees for reasons other than their own merit, if the term is used so loosely.

The professors can correct me if I in any way misinterpreted their understanding.

" but it could also be used to ram people through without any process at all."

That is a feature, not a bug, from Reid's perspective.

By the way, I would gladly abolish the filibuster, were we to institute some other reforms, to assure that a debate over nominees actually takes place, instead of them being rammed through without debate. (Which is the actual purpose here.)

Genuine enforcement of the quorum requirement, for instance, to put an end to votes held with as few as three Senators present. Just make every last vote a roll call vote, (Easily accomplished electronically.) so as to preserve the evidence of a lack of quorum. And why not? The Constitution actually does demand a quorum, even if the courts refuse to enforce this demand.

Abolish enrolled bill doctrine, so that the two houses have to have actually voted through the same bill, instead of simply having the leadership claim that such happened. Again, another constitutional demand that the courts refuse to enforce.

And dispense with the pretense that a dead house bill amended to replace everything but the "HR" number is actually a bill originating in the House. Likewise.

Institute these reforms, and I'd be glad to get rid of the filibuster. Not gonna happen. Congressional leaders think the Constitution is too much of a drag to comply with.

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Joe- I read the legal scholar letter as saying that the nuclear option can only be used on the first day of a new Congress. Professor Magliocca agrees. So does Senator Harkin, who cited it for that proposition on the floor of the Senate in January.

If Professor Levinson has a different view, I would be interested to hear it.

It is apparent that is your reading mls, but it does not appear to me to be so cut and dried & if nothing else, it leaves things open to change, which is the ultimate nature of such common law (in effect) principles.

Brett, there is no apparent actual evidence that Sen. Reid expects or even wants nominees not to go to committee first etc.

Typical Senate kabuki theater.

They kept the filibuster and dropped votes on some sacrificial lamb nominees in exchange for votes on everyone else.

This deal was probably cut a month ago and the rest was low information voter fodder.

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