The filibuster survives, recess appointments may be dead

The filibuster – the tool used by a minority in the U.S. Senate to block action – lives on, despite having had a close shave last month.  
 

And the deal by which it survived may have quietly undermined President Obama’s effort to get around the Republicans’ tactics to block his appointments to federal office.

This story shows why the Senate frequently is unable to function. National polls now give Congress its lowest favorable rating ever.

The top federal posts are filled by the president with the “advice and consent” of a simple majority of the Senate’s 100 members.  But the Senate must first agree to end debate and vote, and under its rules, that takes 60 senators.

That means a Senate minority can prevent presidential nominees from taking office.  In recent years, the minority Republicans have used the filibuster threat to deny confirmation of Obama’s appointees.

The White House thought it had found a loophole to get around the Senate filibuster.  The Constitution allows the president to make temporary appointments without confirmation when the Senate is in recess.

In earlier times, the Senate took lengthy recesses, usually trying to escape Washington’s summer heat.  Recess appointments were necessary if the government was not to grind to a halt when senators were away.

Obama thought he could make recess appointments when the Senate was out of town for a few days, the usual lengthy recess having almost disappeared in the era of air conditioning.  But the GOP took to having one senator hang around to hold a five-minute session each day to prevent any recess and, as a result, any recess appointments.

Thinking that ploy was transparently phony, Obama went ahead making what he considered recess appointments, while the Senate was holding these non-business sessions.   

Eventually, however, these temporary appointments would have to gain Senate approval or the nominee would have to leave office. 

Senate Republicans refused to lift the filibuster threat.  They would not approve Thomas Perez to be labor secretary because they disliked his views, and they blocked Richard Cordray as head of the new Consumer Financial Protection Bureau because they disliked the bureau itself.

Among Obama’s appointees held up by the filibuster were two people named to the National Labor Relations Board.  They held recess appointments, at least as Obama saw them.

Senate Democrats warned that unless confirmation votes were held, they would change the rules by a majority vote and eliminate the filibuster for presidential nominees.  This move is considered so powerful that it is called “the nuclear option.”

Faced with that threat, some Republicans backed down.  They agreed to permit a vote on seven pending nominees, provided Obama replaced the two NLRB people with other nominees.

But hammering this deal out took a lengthy, closed-door Senate meeting at which Maine GOP Sen. Susan Collins apparently had some effect, saying she “felt a great sense of sadness” about the affair.

The deal was that the Democrats would leave the filibuster in place for nominees, if the GOP would not use it for the seven currently waiting.  Both sides kept their options open for the future.

This relatively small agreement was heralded as if it were a historic compromise, one in which the Democrats had gotten the better of the bargain.  “No gloating, maximum dignity,” counseled Maryland Democratic Sen. Barbara Mikulski.

Many Republicans regretted the concessions their party seemed to have made.  “We basically rolled over,” said Sen. Richard Shelby, an Alabama Republican. 

Maybe they were being truthful or maybe not.  They preserved their filibuster for at least the time being. But there was something else that nobody has talked about.

After Obama made his appointments, the Republicans challenged him in court.  In three federal courts decisions, with judicial majorities composed of Republican appointees and minorities by Democratic appointees, Obama’s recess appointments were found not to be legal.

The courts said the short, formal sessions, designed to prevent a recess, had worked.

The labor board appointees were specifically targeted, and Obama appealed to the Supreme Court, which said it would take the case, agreeing to decide the political conflict between Obama and the GOP senators.

By getting the Democrats to agree to replace the two NLRB nominees, the Republicans may have succeeded in eliminating the issue before the Supreme Court, which could decide there no longer is a dispute.  That could leave the lower court rulings in place with Obama the loser, unable to get around the Senate minority.

The end of the story, for the time being at least, is that the filibuster survives, and recess appointments may be forever dead.