In 2010, Congress passed and President Obama signed a law creating the Consumer Financial Protection Bureau. Shortly thereafter, Senate Republicans promised to effectively render this agency a nullity by refusing to confirm anyone to head it — no matter who President Obama nominated. In other words, despite the fact that the Constitution requires a new Act of Congress to clear both houses and the presidential veto power in order to eliminate the CFPB, Senate Republicans thought they could make an end-run around the Constitution by not allowing anyone to be appointed to the one key position within the agency. Eventually, President Obama blocked this attack on the rule of law by recess appointing Richard Cordray to head the CFPB.

Last week, the severely conservative United States Court of Appeals for the D.C. Circuit embraced the Senate GOP’s end-run around the Constitution by declaring these recess appointments unconstitutional. Indeed, the D.C. Circuit didn’t just declare these appointments unconstitutional, it declared most modern recess appointments unconstitutional as well. If the court’s surprising rationale is upheld on appeal, it would effectively remove the recess power from the Constitution altogether.

In an interview with MSNBC on Tuesday, Sen. Lamar Alexander (R-TN) rooted for this outcome — claiming Republicans should be allowed to hollow out the entire federal government by refusing to confirm anyone at all if they chose:

CHUCK TODD: The president of one party could be in the White House — get elected. There could be a political part that controls the Senate on the other side — so then the president has no recourse if that United States Senate of the opposite part of the president decides “you know what? We’re shutting down the confirmation process,” because, you know that can be done. Is that what . . . there’s no recourse at all for the executive branch here?

ALEXANDER: Yeah, the next election is the recourse for the executive branch. . . .

TODD: You can hold up cabinet appointments for four years?

ALEXANDER: It could be two years, yeah. Of course it could. . . . The president has to keep sending people until he finds someone who can gain the support of the senate.

For the record, we just had “the next election” and President Obama won — as did Senate Democrats, who picked up two seats in a year when the overwhelming majority of the seats in dispute had Democratic incumbents. And President Obama can’t “keep sending people” until he finds a CFPB head Senate Republicans will not filibuster because Republicans promised to block anyone Obama nominates.

The Huffington Post reports that Senate Leaders Harry Reid (D-NV) and Mitch McConnell (R-KY) reached a deal today to support minor — and in some cases, temporary — changes to the Senate Rules, rather than push through the more robust reforms championed by many Democratic senators. The language of the deal, which is divided into two separate resolutions, is available here and here.

The list of reforms is short and unlikely to fundamentally repair the broken Senate, but it does include some genuinely helpful reforms to the nominations process — in addition to a major concession to the Republican minority. Here are the three biggest winners and losers in this package:

Winners

• Republicans: The package creates a new process that gives Republicans the ability to offer two amendments on any bill that cannot be blocked by the Majority Leader, although there is a process by which consensus bills can be streamlined if a substantial number of Republicans consent. More importantly, however, by not including any real limits on the minority’s power to force 60 vote majorities on nearly any bill or nomination, Republicans retain their veto power over matters they wish to block.
• District Judges: Currently, Senate rules allow the minority to force up to 30 hours of wasted time before a single nominee can be confirmed. Because Senate floor time is limited, this leads to many confirmations being delayed for months or killed entirely simply because the Majority Leader cannot afford to budget the time to move the nomination forward. The proposal reduces the amount of time that can be wasted while confirming a federal trial judge to 2 hours, significantly reducing the time cost of such confirmations.
• Sub-Cabinet Officials: Meanwhile, the 30 hours of wasted time on sub-cabinet officials’ confirmation votes is reduced to 8 hours.

Losers

• Circuit Judges, Supreme Court Justices & Cabinet Officials: The senior most Senate-confirmed jobs — justices, court of appeals judges and the most powerful executive branch officials — are still subject to 30 hours of delay.
• The Tea Party: The package reduces the number of opportunities to obstruct a bill that is supported by the Minority Leader and at least 7 Republicans, meaning that senators like Rand Paul (R-KY) or Mike Lee (R-UT) will have fewer chances to block progress on matters that everyone but a few Tea Party extremists support.
• The Future: The most significant changes in this package — the reduced hours for nominees and the two free amendments for the minority — sunset in two years and thus will cease to exist in the 114th Congress unless reinstated.

For weeks, Democratic senators have been crafting a filibuster reform package that, if it resembles the reforms embraced by Majority Leader Harry Reid (D-NV), will include reforms that prevent the minority from imposing hours of needless delay every time a new nominee is confirmed, and which will also include the so-called “talking filibuster” that requires supporters of a filibuster to speak on the floor in order to maintain it.

Opponents of reform have now offered a counterproposal — and, according to Sen. Lamar Alexander (R-TN), it essentially amounts to doing nothing:

Alexander, emerging from a bipartisan meeting of reform opponents held this morning in Kyl’s office, said that the proposal would limit the use of the filibuster in some cases, such as on a motion to proceed to debate, and also include provisions allowing for amendments for the minority.

“We have so many new members of the Senate, about half of the senators have never seen the Senate work properly because they’ve only been here five or six years,” Alexander said. “So we’re trying to get back to the days when the motion to proceed wasn’t used to block so many bills and when the majority leader allowed senators to offer almost any amendment. Most of that has to be established by practice, by good behavior, rather than by changing the rules.”

By limiting filibusters on motions to proceed, this proposal will restrict the minority from effectively filibustering the same bill twice, but it does nothing to prevent the minority from filibustering any bill they can filibuster now. It also does nothing to prevent widespread obstruction of judicial and other nominees. And it does nothing to discourage senators from filibustering routine bills or uncontroversial nominees simply to delay or to gain leverage. If this counterproposal passes in lieu of the more meaningful proposals endorsed by Sen. Reid and others, it will mean that Minority Leader Mitch McConnell (R-KY) will remain the king of the Senate, and senators in the majority will still need to beg his permission in order to accomplish anything.

And any senator who votes in favor of this counterproposal and against the more substantial proposals on the table is voting to give McConnell that power.

In a report suggesting that Senate Democrats are likely to have the 51 votes necessary to reform the filibuster next month, Ryan Grim reports that Senate Majority Leader Reid (D-NV) has embraced an important reform to prevent obstruction of judicial and other nominees. According to Grim, Reid, “wants to streamline the nomination process, and cut out some of the time it takes to move judges through by limiting debate once a filibuster has been defeated.”

This is a significant addition to the package of reforms Reid already endorsed, which include eliminating the minority’s ability to filibuster the same bill more than once and requiring a senator to speak on the floor in order to maintain a filibuster. Under current Senate rules, the minority can force up to 30 hours of floor time to be wasted even after a supermajority of the Senate votes to break a filibuster on a nominee. When multiplied across the many hundreds of nominees the Senate must confirm, these 30 hours of wasted time allow the minority to bring the Senate to a virtual standstill.

Of course, it remains to be seen just how deeply Reid is willing to cut these 30 hours — in an ideal world, he will embrace Sen. Jeff Merkley’s (D-OR) suggestion to eliminate all of them. Nevertheless, the fact that Reid appears to be on board with cutting short these 30 hours of waste is a significant positive development in the negotiations over filibuster reform.

A new Public Policy Polling poll finds overwhelming support for filibuster reform generally, and similarly strong support for specific reforms currently under discussion. The poll, which includes respondents from the ten states of Arkansas, California, Florida, Massachusetts, Michigan, Missouri, Montana, North Carolina, Rhode Island, and Vermont, finds that 61 percent of the public wants their senator to vote to change the Senate’s rules, while only 25 percent support the status quo. Similarly, the poll finds that 62 percent support “allowing one opportunity to filibuster a bill instead of the four different opportunities to filibuster that the current Senate rules allow,” and 70 percent support a proposal to “make Senators who want to filibuster a bill have to continue to debate the bill on the Senate floor.”

The most popular reform tested by the poll, however, is ensuring that “people who have been nominated to serve as judges have an up or down vote on their nominations in a more timely manner.” 75 percent of respondents supported this proposal. Only 17 percent oppose it. This very popular reform closely resembles a proposal by President Obama in his State of the Union Address last January to guarantee every nominee an up or down vote within 90 days.

The Senate, however, does not appear to have not caught up to the President and public opinion in supporting a guaranteed timely floor vote for nominees. In an exclusive interview with ThinkProgress last week, Sen. Jeff Merkley (D-OR) expressed doubt that Obama’s proposal would receive the support of a majority of his colleagues. Merkley also proposed a more moderate reform, however, that would go a long way towards ending obstruction of federal judges.

Currently, the minority can force up to 30 hours of floor time to be wasted even after a supermajority of the Senate votes to break a filibuster on a nominee. Because Senate floor time is so precious, the mere threat of this wasted time is often enough to prevent the majority from calling a vote on nominees, even though the nominees enjoy overwhelming bipartisan support. Merkley proposed proposed reducing these 30 hours to just 2 hours, or even to no time at all — thus ensuring that the overwhelming majority of nominees, who face no meaningful opposition even from senators in the minority, will no longer be used as bargain chips in a one-sided game of obstructionism.

With the possibility of meaningful filibuster reform looming next month, at least four Republican senators are now claiming that they are willing to strike a deal that would change the Senate rules without requiring Senate Democrats to invoke a procedure enabling them to do so with only 51 votes:

[T]op Senate Republicans — including John McCain of Arizona, Lamar Alexander of Tennessee, Jon Kyl of Arizona and Lindsey Graham of South Carolina — are trying to head off the showdown. They’re reaching out to Democrats who have expressed concerns about changing the rules by 51 votes, including Sens. Mark Pryor of Arkansas and Carl Levin of Michigan. And Republicans are reaching out to a key Reid ally, New York Sen. Chuck Schumer, the No. 3 Senate Democrat and chairman of the Rules Committee, to see whether a deal can be cut before the new Congress convenes in January.

McCain called it a “meeting of the minds.”

“I’d like to see what we agree on and where we can share our mutual concerns,” the Arizona Republican said.

There are a number of moderate rules reforms that reasonable Republicans should be willing to support if they are willing to deal with Senate Democrats in good faith. Last week, for example, Sen. Jeff Merkley (D-OR) proposed eliminating a quirk of the current rules which allows filibustering senators to force up to 30 hours of floor time to be wasted every single time the Senate confirms a nominee. This rule serves no purpose other than delay — if it were eliminated, minority senators would still be able to block nominees they oppose strongly unless the majority could produce 60 votes to break their filibuster — and if McCain, Alexander and their colleagues want to make a deal, agreeing to eliminate these 30 hours would be a good way to demonstrate that they are serious.

Nevertheless, Senate Democrats should be cautious of striking a deal in light of recent history. Two years ago, Minority Leader Mitch McConnell (R-KY) agreed to a “handshake deal” that ultimately achieved nothing more than a minor bill eliminating Senate confirmations of multiple low and mid-level appointees. The Senate minority’s practice of obstructing judges and other key appointees remained unchecked, and it continues to this day.

Similarly, in 2005, when Senate Republicans threatened to enact filibuster reform by a majority vote in order to end filibusters of a handful of President George W. Bush’s judicial nominees, many Senate Democrats eventually agreed to a deal that confirmed three of Bush’s most ideological judges. These included Judge Janice Rogers Brown, who once compared Social Security to cannibalism and who recently authored an opinion claiming that all labor, business or Wall Street regulation is constitutionally suspect; and Judge Priscilla Owen, who took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court and then wrote a key opinion reducing Enron’s taxes by $15 million.

So Senate Democrats have a history of agreeing to lopsided deals on filibuster reform that favor the other party. If they have the 51 votes necessary to move forward with reforms this time around, there is no good reason for them to accept a lesser deal for its own sake.

When Senate Majority Leader Harry Reid (D-NV) announced that he was “wrong” to oppose filibuster reform in 2011, he named two senators as “prophetic” advocates of reform, Sens. Tom Udall (D-NM) and Jeff Merkley (D-OR). These two senators will now play a key role in shaping the filibuster reform package that Senate Democrats ultimately bring to the Senate floor next month. In an exclusive interview with ThinkProgress, Sen. Merkley laid out what he believes that package will include and what he hopes to add to it. His remarks should give progressives hope.

Merkley began the interview by endorsing two reforms that it was already clear would be included in the reform package this January: eliminating the minority’s ability to filibuster the same bill more than once and requiring a senator to speak on the floor in order to maintain a filibuster. Reid already publicly endorsed both of these proposals. Yet, as ThinkProgress has explained, they are not sufficient in and of themselves to prevent widespread obstructionism.

Sen. Merkley, however, listed several other reforms he would like to include in the final package that, together with the two Reid has already endorsed, add up to something quite meaningful. Under current Senate rules, the minority can force up to 30 hours of floor time to be wasted even after a supermajority of the Senate votes to break a filibuster on a nominee. And while 30 hours may not seem like a lot, when they are multiplied across the hundreds of nominees a president must confirm, these 30 hours enables the minority to literally force the Senate to waste years of precious work time doing nothing but confirming judges and executive branch officials. These 30 hours are likely the single greatest tool an obstructionist minority possess, and Senate Republicans wielded this tool to great effect in order to block President Obama’s nominees.

Merkley called for eliminating this opportunity for obstruction completely:

Two years ago, the package that Tom Udall and I put together included reducing those 30 hours to 2 hours, so people could make a final comment as their colleagues were about to vote. And something like that is appropriate. I think it could even be appropriate to go to zero hours, and here’s why: it takes two days for a cloture petition to “ripen.” What that means is that, by the time you file it, and its all public, you have to wait until the day after an intervening day. And so there’s plenty of time for people to make their final case once that petition is there. So if you reduce it to zero hours, you can have a series of cloture petitions and a series of votes that no one could basically — on a Thursday night or a Friday night you could go through a whole series of judges.

Watch it:

This is a serious proposal, and it would do more to restore the Senate’s ability to function than anything else that has been seriously discussed since the election. So long as John Boehner controls the House, there is little the Senate can do to pass legislation over Republican objections. Merkley’s proposal to eliminate these 30 hours of delay, however, would completely strip away one of the current minority’s favorite tactics — filibustering nominees they don’t even oppose.

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