Could Today Be The Day Harry Reid Goes Nuclear? [Update: Tentative Deal Reached]
The Senate may be headed for an historic confrontation today if an 11th hour deal isn't reached.
The entire Senate met for 3 1/2 hours last night behind closed doors in the historic Old Senate Chamber in an effort to try to reach some kind of agreement on advancing Presidential nominees through the full Senate that would avoid Senate Majority Leader Reid from using the so-called “nuclear option” to get around Republican attempts to invoke cloture. No deal with reached, and depending on which source you read Senators are either close to some kind of a deal or nowhere near one.
There is, for example, this from The New York Times:
WASHINGTON — Senator Harry Reid of Nevada took a defiant and uncompromising stand on Monday before a showdown on the future of the filibuster, saying that Republicans must stop blocking executive branch nominations or he will try to change rules to “save the Senate from becoming obsolete.”
But senators emerged from a three-and a-half-hour meeting in the Old Senate Chamber saying they were confident that an agreement could be reached Tuesday to defuse the tense partisan standoff, though no deal had been struck in the closed session that went well into the night.
Democratic and Republican leaders promised to continue negotiating, but Mr. Reid, the majority leader, said the first test vote was still scheduled for Tuesday morning.
Senator John D. Rockefeller IV, Democrat of West Virginia, said, “There’s no deal, but there’s a much better understanding.”
All but two of the 100 senators cloistered themselves in the Old Senate Chamber, where some of the great compromises of the early days of the nation were struck and where modern Senates have met at difficult moments, including the impeachment of President Bill Clinton.
Senators said nearly all of them spoke, some passionately, for or against a change to the rules, which would ostensibly only end filibusters of presidential nominees for executive branch positions but could possibly pave the way to further limit the filibuster in the future.
Advocates of the change said Democrats would stay the course for a showdown on Tuesday. “It was a very good discussion, but at this point, we’re headed to votes” that will probably trigger the change, said Senator Tom Udall, Democrat of New Mexico and a leading advocate of weakening the filibuster.
Most other senators said they thought their leaders would bring them back from the brink.
A spokesman for Senator Mitch McConnell of Kentucky, the Republican leader, said, “A clear bipartisan majority in the meeting believed the leaders ought to find a solution.”
“We just need to give them 24 hours,” said Senator Bob Corker, Republican of Tennessee.
Senators from both parties said they were seeking an alternative to Mr. Reid’s vow to ask a majority of members to ban filibusters against executive nominations, though he would leave the storied procedural option intact for judicial nominees and legislation.
“This is a moment in history where circumstances dictate the need for change,” Mr. Reid said in a speech at the liberal Center for American Progress. He suggested that the only way for Republicans to avoid the rules change was to acquiesce to straight up-or-down votes on Tuesday on seven nominees in question and stop filibustering executive nominations in the future.
“I love the Senate, but right now the Senate is broken and needs to be fixed,” he said.
The Washington Post’s coverage strikes a similar somewhat optimistic tone in passing along Senate hopes that a deal can be reached:
The Senate inched closer to an eleventh-hour deal late Monday night in a bid to avert an unprecedented maneuver to change the chamber’s rules governing presidential appointees, with nearly all 100 senators spending more than three hours huddled in a rare bipartisan, closed-door caucus.
Rank-and-file senators came out of the meeting reporting progress on the confirmation prospects of President Obama’s selections to head low-profile but influential agencies. Majority Leader Harry M. Reid (D-Nev.) echoed that sentiment but said no resolution had been reached, leaving in place a critical 10 a.m. Tuesday vote that would set up the historic clash over changing the Senate rules on a raw party-line vote so that Cabinet- and agency-level nominees could be confirmed without having to overcome a filibuster.
“There’s no deal but there’s a much better understanding,” said Sen. John D. “Jay” Rockefeller IV (D-W.Va.), one of his party’s most senior senators. Rockefeller said there was a framework for a possible deal before the showdown votes on Obama’s current picks to run the National Labor Relations Board and the Consumer Financial Protection Bureau. Some exited more grim, including Sen. John McCain (R-Ariz.), who spent the previous week in shuttle diplomacy with Reid, Minority Leader Mitch McConnell (R-Ky.) and the White House.
Asked whether Reid had come around, McCain said simply: “Yes, sort of.” He said the talks were now firmly between Reid and McConnell, predicting a long night ahead.
McConnell did not speak after the meeting, issuing a statement declaring “a clear bipartisan majority” supported finding a solution.
Roll Call, however, was less optimistic:
A Senate standoff over filibusters looms Tuesday morning, even though Senate leaders pledged to continue discussions about how to avoid the “nuclear option” during a rare bipartisan meeting of the whole chamber.
“It was very constructive. It was great to allow everyone to have a forum and weigh in. I was really glad we did it, and sometimes these things, if they simmer overnight a little bit, you might, you might get a breakthrough,” said Arkansas Sen.Mark Pryor, one of the few Democrats who has opposed his leader’s plan to end filibusters of executive branch nominees by simple-majority procedural move.
Senators described the tenor of the more than three-and-half-hour joint caucus meeting in the old Senate chamber as positive, but they left without much optimism that an agreement would be reached by Tuesday morning.
The first test is currently scheduled to come this morning at some point around 11am when the Senate is scheduled to take up the nomination of Richard Cordray to be the head of the Consumer Financial Protection Bureau, a nomination that Republicans have opposed and which has been the subject of controversy for some time now for two reasons. First of all, there’s the GOP’s general opposition to the CFPB to begin with, an hostility that dates back to the very formation of the agency several years ago. Second, though, there’s the fact that, when Senate Democrats were unable to move the nomination forward, the President purported to appoint Cordray under the Recess Appointments Clause, a move that at least one Federal Court of Appeals has found to be unconstitutional when applied to three members of the National Labor Relations Bureau. So, there’s a significant amount of bad blood over Cordray’s nomination to begin with.
Presumably, if the Senate reaches the point where the Cordray reaches the point where the Democrats are unable to garner the 60 votes necessary to invoke cloture then Reid will attempt to engage in the parliamentary moves necessary to change Senate rules to allow for a straight up or down vote on Presidential nominations going forward. On the Senate floor this morning Senator Reid hinted that there was some kind of deal in the works that would seem to avoid having to pull the nuclear trigger over the Cordray nomination, though, so hope for a deal of some kind has not been abandoned.
Here’s how Politico is describing a potential deal:
Cordray’s nomination to lead the CFPB is the first vote, scheduled for 11 a.m., and he may have the votes to clear the procedural hurdle. If the Senate does invoke cloture on the Cordray nomination, as many as eight hours of debate will open up for senators to try to finally resolve their differences.
At this point, it’s the recess-appointed NLRB members who remain the subject of the biggest partisan brawl.
“I think the question is whether there will be some accommodation for Republicans on the NLRB nominations,” said Sen. John Thune of South Dakota, No. 3 in the GOP leadership.
Democrats want to approve Sharon Block and Richard Griffin to the NLRB, but Republicans are balking as the question to whether their recess appointments are constitutional awaits a Supreme Court decision this fall. Instead, Republicans are hoping to slot in two new Democratic-chosen NLRB members in place of Block and Griffin, a move sure to rile up the liberal wing of the party.
The Senate is currently in a quorum call rather than formally debating the cloture motion on the Cordray nomination, so they’re obviously trying to buy some time to work out a deal. If it doesn’t work, then the Senate could be headed for an historic confrontation as early as today.
Update: The Washington Post is up with a story reporting that a tentative deal has been reached, although the outline of that deal isn’t stated as of now. Since the Senate is moving forward on the Cordray cloture vote, though, one can only presume that the deal regarding NLRB nominations has been agreed to by all necessary parties.
Update #2: The Cordray nomination has passed its cloture vote 71-29, and The Huffington Post has the basic outlines of what the deal in the Senate appears to be:
The deal, which was negotiated primarily between Senate Majority Leader Harry Reid (D-Nev.) and Sen. John McCain (R-Ariz.), was described by a Senate Democratic aide as one in which the Republican Party will allow votes to confirm the seven executive nominees, provided that Obama replaces his two nominees to the National Labor Relations Board with two other names. Those nominees would have a commitment “in writing” from GOP leadership to get a vote, the Democratic aide said.
Getting replacements for the NLRB nominees is, more or less, a face-saving measure for the GOP leadership. Republicans had argued that the nominees, Sharon Block and Richard Griffin, were irrevocably tainted because Obama elevated them as recess appointments, which were ruled unconstitutional by the U.S. Court of Appeals for the D.C. Circuit. Democrats countered that such taint would have been wiped away had Block and Griffin received a clean vote by the Senate.
When asked about such claims, a top Republican Senate aide remained unsatisfied, arguing that to consider their nominations at this point would be to “codify” the president’s ability to make “recess appointments illegally.”
Obviously, the Administration will have to be part of any deal of this nature, but it just so happens that Vice-President Biden was present in the Senate Chamber this morning to swear in Ed Markey as the newest Senator from Massachusetts so I am sure he’s been involved in the behind the scenes talks.