The “Nuclear Option” and the Erosion of Rule of Law

Harry Reid is at the end of his rope.

President Obama continues to nominate a steady stream of superbly qualified candidates to staff critical positions in the Executive branch. However, Senate Republicans, through long-standing procedure (the filibuster) that allows a type of “tyranny of the minority,” have steadfastly “obstructed” the Senate from moving the nominations to approval.

So, Harry has threatened – and it seems for real this time – to pull the pin.

The grenade, in this case, is a deceptively simple parliamentary ruling that would come from the presiding officer of the Senate, likely Vice President Biden. With a motion from the Chair and a simple majority vote, the Senate would end the use of the filibuster for confirming presidential appointees and instead require only a simple majority of 51 votes.

Currently, the Senate must first vote to end debate with 60 votes (cloture), before a simple majority can confirm a nominee. The GOP has used that 60 vote hurdle (Democrats have 54 seats) to prevent action on nominations for reasons large and small. The rule change, we are told, would apply only to Executive branch appointees, not the more sensitive and controversial judicial nominations, which will still require the 60 vote threshold.

Of course, Reid does have a point.

Barring the nomination of someone who is obviously unfit for office – and President’s sadly do this – POTUS should be entitled to the presumption of staffing his Administration as he deems fit.. Still, this game of holding nominations hostage to larger political issues is bipartisan historically, and has become a vehicle of encroaching destructiveness that now materially impairs the effective functioning of the Executive branch.

It should stop. Now, and for all future nominees.

But Reid’s solution is not the answer. Indeed, Reid is playing with fire.

First, a bit of background.

Under Senate Rule 22, adopted nearly 100 years ago (1917), a two-thirds majority is needed to end debate and change the rules. The text is here:

“…And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.”

So, under the existing rules, which both parties have respected for generations, Harry Reid would need 67 votes to change the rules of the Senate and allow executive appointments to pass on a simple majority vote.

The problem is that Reid is 14 votes short.

What to do?

Reid’s gambit would disregard Rule 22 and its century long history in its entirety, and simply rely on the brute force of the majority’s numbers  to rewrite the rules as Reid, as Majority Leader, deems fit.

It is unprecedented. And it will have profound consequences.

Without a mutually accepted set of rules to govern conduct and preserve the rights of the minority, Reid’s precedent would make it possible for any future majority – and the Republicans will eventually be in the majority – to do as it wishes. What is a judicial nomination, after all, but a different type of presidential appointment? Why wouldn’t the GOP want to strip away the filibuster for those appointments and bypass Democratic obstruction of a more conservative court system? Indeed it was this very logic that Reid, then Senator Biden and then Senator Obama invoked during the Bush administration when Republican Senators threatened similar action.

The net result from Reid’s action would be the ultimate rebuke; the Senate – called the world’s greatest deliberative body – would become a version of the rigid, hyper-partisan House of Representatives, only with better office space.

So why? Why this and why now?

The answer raises truly disturbing questions about the sanctity of law and the lengths to which elected leaders will go to achieve the objectives of their core supporters.

To understand, a bit of background.

The National Labor Relations Board (NLRB) was created to protect the rights of US workers, acting as an arbiter between employers and employees in resolving disputes. Under the Obama administration the NLRB has become a hotbed of hyper-partisanship and provocative progressive activism. It was the NLRB that took the breathtaking step of suing Boeing to prevent the construction of a $1 billion plant in South Carolina (a right to work state), ostensibly because it was moving union jobs to a non-union location (unproved). A better example of unaccountable regulatory intimidation is hard to come by. The tilt in favor of organized labor was unmistakable, with the NLRB risking real economic growth to carry union water.

As a result, the NLRB has become a political flash point between Republicans and Democrats.

At the end of 2011, after its Boeing stunt, the NLRB was at risk of losing its quorum to conduct business (having only two out of five permanent members). To address the issue, President Obama nominated three officials to fill the vacancies in mid-December 2011.

Under normal procedure, it would be months before the nominations had cleared their paperwork requirements, where the nominees would have had their courtesy calls and hearings, followed by a committee vote, and if positive, a floor vote in the full Senate.

The Senate took no action on the nominations before Members left town for the traditional January break. By a precedent ironically created by Harry Reid when George W. Bush was president, the Senate continued to operate in “pro-forma” session during this break – opening and closing quickly every third day – to prevent the President from making recess appointments.

But that did not stop President Obama.

POTUS recklessly disregarded the prerogatives of the Senate (which he supported as a senator) and set off a separation of powers battle when, in January 2012, he claimed the authority to make recess appointments during the Senate’s pro-forma session. He used the authority to appoint all three NLRB nominees to office, allowing the agency to continue to function without a delay.

Lawsuits followed, and in January 2013, the DC Circuit Court startled the Administration and Democrats by ruling that POTUS’s recess appointments, including those to the NLRB, had been unconstitutional. Beyond the separation of powers issue, one tangible outcome of the decision would be to make all NLRB rulings in the interim period null and void, a true disaster for organized labor.

Despite the Court ruling, the NLRB has refused to acknowledge the court decision and has continued to function and issue findings and conduct business. Businesses and other litigants have sought injunctive relief to prevent the NLRB from issuing any further rulings, or enforcing those that have previously been made, until the Supreme Court hears the case next year.

Thus, the intemperate Obama recess appointments have now created a judicial backlash as well as significant regulatory uncertainty for organized labor and its supporters in government.

In the meantime, as recess appointments are only valid until the end of the following year after they are made (in this case of POTUS’ disputed appointments, December 2013), President Obama has renominated the three recess appointees for full terms on the NLRB.

This is the background for the current nominations fight in the Senate.

Since a court has ruled that the original recess appointments were unconstitutional, Republicans have made the not extraordinary request that President Obama nominate new officials, untainted by the appointments scandal. The President has so far refused, insisting on the original three people nominated first in 2011.

As a result of all these events, we are now headed toward a showdown.

Unless the Senate takes action to approve the three nominees for the NLRB before the end of the year, the agency will be left without a quorum – and the ability to act – after December 31, 2013. Worse for POTUS and liberals, if the Supreme Court upholds the DC District Court’s ruling that the Obama appointments were unconstitutional next year, when the case is considered, then all the rulings by the NLRB from January 2012-June 2014 (when a decision will likely be handed down by SCOTUS) will be invalid, a simply tremendous blow to organized labor.

With so much at stake, the only path forward for organized labor and the Democrats is to get a non-recess appointed NLRB quorum before SCOTUS rules. If compliant nominees can be voted out properly, without the stain of the recess appointments scandal, then the newly constituted NLRB will have a quorum to re-ratify all the decisions from January 2012 forward. At that point, who cares what SCOTUS rules? New nominees untainted by the scandal will be in place and all the rulings intact. It would be a matter of form over substance.

That is where Harry Reid finds himself today.

But with the GOP clearly willing to block the nominations, at least until SCOTUS rules on the separation of powers case, what path can the Democrats take to preserve the NLRB gains for unions?

Blow up the rules of the Senate.

So as much as Harry Reid would have you believe that his threats are all about good government and Republican obstruction look again.

What Reid is actually proposing is a frightening, brass-knuckles, zero-sum, take-no-prisoners type of power politics, where the law only matters to the extent that it is convenient for Reid and liberal allies. Worse, this guiding philosophy fits comfortably within the governing framework for the President and his Administration, where the operational principle is that the ends justify the means. Consider:

– Obamacare pushed through Congress on a partisan vote, using extra-parliamentary procedures, and despite durable public opposition, which continues to this day.

– POTUS refusing to enforce current immigration laws for 1.7 million young illegal immigrants, thereby accomplishing through Executive fiat what could not pass as the Dream Act in Congress.

– POTUS empowering the Environmental Protection Agency (EPA) to implement de facto carbon caps by Executive action when Congress decisively rejected precisely such legislation.

– POTUS unilaterally suspending parts of his own healthcare law, despite there being no provision in the law for Executive branch to do so.

Writ large, it is a profoundly chilling governing paradigm for our citizens to consider.

What Harry Reid is proposing is the antithesis of good government. Indeed, it is part of a definable and insidious pattern of virtual lawlessness that is corroding our social compact, further alienating voters from those who are ostensibly elected to represent them.

These blatant manipulations are simply unworthy of a great nation.

A great people should be aroused.

So where is everyone?