07.10.2013 2

The end of the filibuster?

By Robert Romano

Is this the beginning of the end of the filibuster?

If Senate Republicans object to a series of upcoming nominations this month, “Democrats plan to threaten to use the impasse to change the Senate rules,” eliminating the filibuster, reports the New York Times.

The pending nominations include the controversial Richard Cordray to head the Consumer Financial Protection Bureau, Gina McCarthy to the Environmental Protection Agency, and Thomas Perez to the Labor Department.

With Cordray, Republicans have opposed filling the Bureau’s seat because they object to the premise of the agency. To get around the filibuster, Barack Obama concocted a phony congressional “recess” to fill the seat, and other vacancies on the National Labor Relations Board (NLRB).

But those appointments are ending — and also under judicial review given their dubious constitutional basis, calling into question the validity of the hundreds of decisions that were made — leaving the White House to wonder how these agencies will function.

Enter the nuclear option.

Although it takes 67 votes under existing Senate rules to invoke cloture to amend those rules, using the so-called nuclear option, the rule could be supposedly be changed with a simple majority vote.

A 2005 Congressional Research Service (CRS) report on the topic, “Changing Senate Rules or Procedures: The ‘Constitutional’ or ‘Nuclear’ Option,” covered many of the scenarios that might be attempted.

As the described by the CRS in 2005: “The presiding officer might make a ruling from the chair, or a Senator could make a point of order from the floor that the supermajority requirement for cloture is unconstitutional.” Then, a simple majority of Senators would sustain the change.

But is Senate Majority Leader Harry Reid (D-NV) really willing to sacrifice the 96-year-old filibuster embodied in Senate Rule XXII just to fill these nominations?

Americans for Limited Government President Nathan Mehrens urged Senate Minority Leader Mitch McConnell (R-KY) to call Democrats’ bluff, saying he should “not be fearful of using the filibuster against nominees.”

“This is nothing more than an idle threat by the Senate majority to bully Republicans into allowing the Senate to become little more than a rubber stamp for nominees,” Mehrens explained.

In short, Senate Democrats may be attempting to psyche out Republicans into approving their favored nominees by threatening a filibuster repeal.

Mehrens said there would be a cost to eliminating the filibuster. “If they do repeal the filibuster in this manner, it will be for all time. When, not if, Democrats again find themselves in the minority, this will be used against them.”

For, if a simple majority can be used to repeal Rule XXII on nominations, it can be used to go after it on legislation as well. That would make a simple majority sufficient to repeal Obamacare, Dodd-Frank, or rein in other parts of the entitlement state.

In short, for Democrats the costs likely outweigh any temporary benefits that might be derived from approving the nominees now. If so, then there is little reason to take the threat seriously.

Which is likely why they won’t do it, and why Republicans should call their bluff.

Robert Romano is the Senior Editor of Americans for Limited Government.

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