For three years, Senate Republicans have waged an unprecedented campaign of obstruction against President Obama’s nominees — using the filibuster to shut down entire agencies and stoking a nationwide vacancy crisis on the federal bench. In his State of the Union speech last night, President Obama met this obstructionism with an equally bold proposal, calling for filibusters on nominations to effectively be eliminated after 90 days:
Some of what’s broken has to do with the way Congress does its business these days. A simple majority is no longer enough to get anything, even routine business, passed through the Senate. Neither party has been blameless in these tactics. Now, both parties should put an end to it. For starters, I ask the senate to pass a simple rule that all judicial and public servant nominations receive an up or down vote within 90 days.
President Obama’s call for filibuster reform is significant, but it is probably less significant than the fact that Senate Majority Leader Harry Reid (D-NV) largely endorsed the proposal — although with an exception for Supreme Court nominees. In 2011, a major push for filibuster reform fizzled in no small part because many Senate Democrats feared the consequences of Republicans having a free hand to appoint radical judges and other nominees more than they feared the consequences of Democratic presidents being completely unable to govern. Reid’s support for Obama’s proposal suggests that the winds are shifting, and Senate Democrats have begun to realize that it is better to have two parties that are able to govern rather than having their party be hamstrung.
Yet while this apparently growing consensus on the need for filibuster reform is significant, it still must overcome the Senate’s arcane rules which typically require a 67 vote supermajority to amend the body’s rules. Supporters of reform have three possible paths forward:
- Bipartisan Consensus: Wishing for bipartisan cooperation in the age of Mitch McConnell is a bit like hoping that the Senate will be rescued by a magical unicorn. Nevertheless, the fact remains that no one knows who will be president in 2013 or who will control the Senate. It is possible that some Senate Republicans would sign onto a filibuster reform plan in the hopes that they could benefit from it in the future.
- The January Option: Because the Constitution forbids a past legislature from tying the hands of future lawmakers, a newly-elected Senate has the power to eliminate or revise the filibuster with just 51 senators voting in favor. The catch, of course, is that the next Senate will not be seated until January, so this option does nothing to prevent filibusters for the entirety of 2012.
- Just Nuke It Already: In 2005, back when George W. Bush was nominating judges, Senate Republicans proposed the so-called “nuclear option,” which would have allowed them to eliminate judicial filibusters mid-way through a Senate session with only 51 votes. Of the three options, the nuclear option stands on the weakest legal footing, however, and it is unlikely to win the support of many of the Democratic senators who denounced it in 2005.
It is unclear if, much less how, the Senate will take up President Obama’s call for filibuster reform. What is clear, however, is that the status quo cannot continue. It is not President Obama who suffers when Mitch McConnell wages his campaign of obstruction, it’s the millions of consumers who depend on functioning federal agencies to safeguard their rights, the workers who depend on workplace safety and fair wage laws in order to provide for them families, and the thousands of litigants who wait months or years for justice in a judiciary burdened by far too many vacancies.