Monday, July 15, 2013 | 10 p.m.
After nearly three-and-a-half hours behind closed doors, the Senate is still at an impasse over how to craft a compromise that will coax Senate Majority Leader Harry Reid away from deploying a procedural nuclear weapon: undoing the filibuster by majority fiat.
It is now up to Reid and his counterpart, Senate Minority Leader Mitch McConnell, to strike a mutually agreeable deal, or leave Reid to make good on his word to call a simple majority vote to invalidate the filibuster — a move that will undoubtedly anger the Senate’s Republican minority.
“I don’t think there’s a solution yet; we’ll probably find out about 10 o’clock (Tuesday) morning if calmer heads have come together,” Republican Sen. Dean Heller of Nevada said, exiting the meeting room. “If we don’t solve this problem, we’ll be the Hatfields and the McCoys on steroids before this is over.”
Reid, fed up with what he describes as excessive Republican obstruction of President Barack Obama’s executive branch nominees, says he is ready to end the procedural, 60-vote filibuster for executive nominations, even if he has to, as Republicans put it, “break the rules to change the rules.”
Reid maintains the Constitution, which is silent on the filibuster, gives him the option to change the rules of the Senate with 51 votes. Republicans and a few Democrats maintain that it takes 67 votes to change Senate rules.
In the past week, the standoff has boiled down to an ultimatum: At 10 a.m. EST Tuesday, Reid wants Republicans to vote to confirm the nominations of Richard Cordray to lead the Consumer Financial Protection Bureau; Gina McCarthy to head the Environmental Protection Agency; Thomas Perez as secretary of Labor; Fred Hochberg as president of the U.S. Export-Import Bank; and the trio of Sharon Block, Richard Griffin and Mark Pearce as members of the National Labor Relations Board. If Republicans vote to confirm, Reid will dispense with his filibuster threat.
But Republicans refuse to be pushed into voting under threat — especially not for NLRB nominees they and the courts say were appointed illegally.
Republicans have indicated there may be support for some of the nominees, if Reid backs off his threat to deploy the “nuclear option.” Heller indicated that under a deal, he might vote for at least some of the pending nominees.
But Republicans are drawing a line in the sand over the NLRB nominees, whom Obama self-approved as recess appointees in 2012, during a short period in which Republicans argue the Senate really wasn’t in a period of real recess. Thus far, the courts have ruled against the president; the Supreme Court will have final say on the matter next year.
“If we allow you to make appointments like that, we’ll go out to lunch and there’ll be a new Supreme Court justice,” said Republican Sen. Lamar Alexander of Tennessee.
Alexander, who emerged from the meeting with a doorstopper copy of the Senate’s rulebook under his arm, pointed out that Republicans have already made Democrats an offer to settle the crisis: Simply nominate new people for the NLRB slots.
In the Old Senate Chamber, lawmakers listened to a new compromise offer as well, spearheaded by Republican Sen. John McCain of Arizona, which would seemingly offer Democrats a semblance of a rule change in exchange for a guarantee not to go nuclear on the filibuster.
“We had many Republicans who supported that proposal. We thought we were getting progress,” McCain said.
“I’m not saying there isn’t a need for change,” Heller said. “But if there is a good rule, there will be 67 [votes] to pass it.”
Some Democrats, however, are committed to the idea of a full revocation of the filibuster, believing it is the only way to guarantee that executive nominations will continue to progress after the fate of the seven in question are resolved.
“If you don’t change the filibuster you might as well take a four-year vacation,” Democratic Sen. Tom Harkin of Iowa recalled telling Obama during his re-election.
“Can we get the votes?” Harkin recalled Obama asking him. “I said: ‘Oh yeah, if you get behind it.’”
Obama has said he supports Reid’s effort to change the filibuster if that is the direction in which the majority leader decides to go. His chief of staff, Denis McDonough, spent much of Monday afternoon meeting with senators in Reid’s office, trying to work out a solution.
Democrats, especially those who are angling for the nuclear option, seemed more pessimistic than Republicans heading out of the old chamber.
“At this point the way I see it we're headed to votes (Tuesday)," said Democratic Sen. Tom Udall of New Mexico, who has been calling for filibuster reform. He added that Republicans didn’t indicate during the meeting that they were inclined to support the president’s nominees.
“Right now the vote’s scheduled. It could be vitiated at any time by unanimous consent,” offered a slightly more upbeat Republican Sen. John Cornyn of Texas. “I think we’re in a little bit better shape.”
Yet all the predictions of 98 senators won’t necessarily determine what bargain the key two — Reid and McConnell — will or won’t strike overnight.
“We had very good conversation,” Reid said in very brief comments to the press late Monday night. “The conversation is going to continue tonight.”
If efforts fall short, it will be up to Reid — who vociferously opposed reforming the filibuster via nuclear option when he was in the minority — to push the trigger button or retreat.
If efforts succeed, however, some senators are eying Monday night’s experience as a blueprint for more effective compromises.
“It was a great opportunity to sit in that chamber,” Heller said, palpably excited about having been occupying the desks where some of the Senate’s most storied statesmen worked. “I think we ought to do that more often. If we actually solve this problem, and that was the reason why — we’ve got to do that more often.”