Fix the Senate Now is urging Harry Reid to move forward with the so-called nuclear option. Nuclear option urged on filibuster

Senate Democrats are inching ever closer to pulling the trigger to limit the filibuster, even after a notable spate of bipartisanship in the chamber to pass the comprehensive immigration bill.

And the liberal base is cheering them on.


A coalition called Fix the Senate Now is launching a full-court press urging Senate Majority Leader Harry Reid to move forward with the so-called nuclear option — changing the Senate rules to prohibit the filibuster, and its 60-vote threshold — for some of President Barack Obama’s nominees.

Those groups are trying to make the case that today’s Senate is synonymous with phrases like “nominations crisis” and “unprecedented obstruction” and are seeking to move the insider debate over the chamber’s arcane procedure into the mainstream and explain what it means to average Americans if the U.S. lacks a functioning National Labor Relations Board or an Environmental Protection Agency administrator.

( PHOTOS: Longest filibusters in history)

“The problem of obstruction isn’t anything less than a crisis. It’s huge and unparalleled,” said Courtney Hight of the Sierra Club. “It does seem like a wonky thing but it affects everyone.”

How this all plays out will be determined behind closed doors at Senate Democratic Caucus lunch meetings, the first of which is on Tuesday. After huddling with his membership, Reid will determine which nominee comes to the floor first to face a likely GOP filibuster.

Reid has refused to answer questions on the topic even as Minority Leader Mitch McConnell (R-Ky.) continues his campaign on the Senate floor to see if Reid will “keep his word” on not changing Senate rules in January — which Democrats are only too happy to turn on McConnell for promising “to work with the majority to process nominations.”

It’s still unclear whether Reid has the votes to change the rules, although the Sierra Club, Communications Workers of America and top Senate aides are confident Reid can marshal 51 members of his 54-member caucus to support at least easing the path for executive nominations such as Cabinet members.

There’s far less certainty on whether the caucus would like to tweak rules for judicial nominees as well.

A contentious fight over the very rules of the Senate might come just a few days after an unusually bipartisan June in which senators approved a landmark immigration bill and a slate of nominees, including two Cabinet-level positions that breezed through. But a Democratic leadership aide said those successes have not moved the needle.

“It’s totally irrelevant,” the aide said. “Immigration is just a unique beast when Republican political survival depends on them getting it done.”

What lies ahead could bring the entire chamber back to a grinding halt of partisanship.

“We’ll certainly have a lot of delayed nominations up shortly, and we’ll find out if the Senate can function or not,” said Sen. Jeff Merkley (D-Ore.), who along with Tom Udall of New Mexico is among the strongest advocates of a rules change. Neither has served in the Senate minority.

Merkley said recent work across the aisles on both executive nominations and judges has taken little pressure off Democrats to steamroll the minority party’s filibuster powers.

“I’m happy there are a few exceptions. But they are exceptions to the general rule. The Senate is still deeply dysfunctional,” he said.

On the other side are tradition-bound veterans like Sens. Max Baucus of Montana and Carl Levin of Michigan, who are wary of any change to Senate procedure, which requires more cooperation between the two parties than in the House, where the majority can rule with few limitations. Another member who has been on the fence is Angus King, an independent from Maine who caucuses with the Democrats.

King said immigration represented a “huge test” on whether Democrats needed to change the rules of the Senate to move their priorities.

“If it bogs down and gets 58 votes and goes away, the pressure to make changes [is] going to be almost irresistible,” King said shortly before the vote.

That didn’t happen, and now the Senate faces a spate of controversial nominees saved for after immigration so as not to kill the cooperative mood. That list includes Obama’s picks for the EPA, NLRB, Labor Department and the Consumer Financial Protection Bureau, not to mention three judges for the prominent D.C. Circuit Court that haven’t gone through committee yet.

In particular, Democrats are homing in on the NLRB nominees as the flash point. If current Chairman Mark Gaston Pearce’s term is not extended by the end of August, the NLRB will no longer have the three members required to function.

“Millions of workers won’t be able to seek protection,” Hight said of that scenario.

A senior Democratic aide predicted that nearly all of those nominees will be subjected to cloture votes, which is precisely what will set off outrage from Democrats and their allies who want simple up-or-down majority votes on the president’s nominees.

“If there’s not an agreement to allow an up-or-down vote on the floor,” CWA President Larry Cohen said, “all Democrats will agree that … a rules change [is] needed.”

It’s not assured that all of Obama’s picks can clear the onerous 60-vote hurdle, although some veteran Republicans may vote for cloture and against the nominee themselves because they oppose the idea of filibusters, even if they don’t like the nominee. The pick who could test that theory is EPA nominee Gina McCarthy, who appears close to having the votes to break a filibuster, although she is unlikely to be the first nominee Reid puts forward.

Instead, it might be CFPB Director Richard Cordray, whose term expires at the end of the year and could be used as a test balloon.

Still, there is some doubt over whether those nominees are truly at the crisis point that would drive changing the age-old rules of the precedent-driven Senate. Nominees for the EPA and Labor were unlikely to be popular among Republicans no matter the choice, and the minority has vowed to block anyone’s confirmation to head the CFPB until structural changes to the agency are made by the Obama administration — a threat now two years old and still unresolved.

Another option: A last-minute bipartisan rescue mission. Ever since the Gang of 14 staved off Republicans’ attempt to change the rules in 2005 following Democratic blockage of President George W. Bush’s judicial nominees, veterans of the chamber have banded together on occasion to keep the peace. The most recent was led by Levin and Sen. John McCain (R-Ariz.) in January, a moderate compromise that most Democrats and Fix the Senate Now groups believe has not worked a lick.

The Senate has confirmed 61 nominations this year including 26 federal judges and has votes on two more judges and an associate attorney general next week, which will leave three judicial nominees on the Senate calendar, according to Republican statistics.

But Hight and Michelle Schwartz, director of Justice Programs at Alliance for Justice and a former Democratic Senate staffer, said there are other ways below the radar that the filibuster is hurting the country. Schwartz said Republican senators are declining to work with the administration on choosing home-state judges to fill judicial vacancies, preventing Obama from nominating them. And Hight pointed to delay on James Jones for EPA’s Office of Chemical Safety and Pollution Prevention and Ken Kopocis to head the Office of Water, both of whom the president renominated after their nominations expired last year.

Still, the president’s Cabinet is now mostly full and there are just a handful of judicial nominees on the calendar — perhaps not the strongest impetus to spark an overhaul of one of the country’s oldest federal institutions.

“There is none. Just look at the executive calendar,” one senior GOP aide said.

But the 100-0 confirmation of Department of Transportation Secretary Anthony Foxx and the 97-1 vote on Commerce Secretary Penny Pritzker represented layups for Congress and are simply teases from the GOP intended to stave off the nuclear option until Republicans retake power and change the rules themselves, the rules-change advocates say.

“Republicans are trying to run up the score with folks who were always going to get through,” the leadership aide said. Still, the aide added: “we are happy to take the ones they will give us.”

“The real test is to come,” Schwartz said. “Picking off Penny Pritzker, picking off Anthony Foxx, this is what the Republicans always do and say: ‘Look, we’re being reasonable because we let you have one.’”

The NLRB and Cordray nominations are also both clouded by a case to be heard by the Supreme Court over the constitutionality of the NLRB’s recess appointments in the Senate. Even though that won’t be heard until the fall, the case will course through the debate on the Senate floor this summer.

“I don’t think anyone wants to touch it with a stick,” the GOP aide said of anything related to the NLRB case.

That decision by the courts has also hamstrung the president from any end around of the Senate on his nominations via recess appointment, further strengthening the GOP’s hand under current Senate procedural rules, said Stephen Spaulding, a counsel for Common Cause.

“Before there was a check even on the filibuster rule,” Spaulding said. “Now, that’s been eviscerated.”