On the brink of a rules change considered so institutionally shattering that its Washingtonese label is “the nuclear option,” the U.S. Senate pulled back Tuesday morning. Seventeen minority Republicans voted with Democrats to end a two-year stall they had imposed on confirmation of President Obama’s nominee to head the Consumer Financial Protection Bureau. Votes on four more long-delayed presidential appointments were expected to follow under the terms of an overnight deal.
In exchange, Senate Democratic Majority Leader Harry Reid withdrew his threat to amend the filibuster rule so that it no longer applied to the confirmation of executive branch nominations.
And the American people are supposed to sigh in relief and praise the sensible 17, right?
We’ll yield to some of that sentiment. Kudos are particularly owed Sen. John McCain of Arizona, the 2008 GOP presidential nominee, who was cited by Reid and others as instrumental in rallying 16 other GOP senators to allow Obama’s pick to head the consumer bureau, Richard Cordray, to be confirmed.
But count this Editorial Board among the skeptics doubting that one day’s deal is sufficient to end the stranglehold that the modern-day filibuster has had on the Senate’s ability to function. Today’s highly partisan American politics rewards minority obstructionism and too often punishes bipartisanship. The good feeling stirred in a rare all-Senate closed door caucus Monday night may have carried over into Tuesday’s votes. But the underlying incentives for gridlock remain, in both parties.
We agree with former Vice President Walter Mondale that the Senate’s rules should be changed to better fit today’s political reality. As we have argued in the past, the Senate’s tradition of prolonged deliberation should not end. But it ought not be possible for 41 minority-party senators to foil majority rule indefinitely on every item of Senate business.
Mondale is worth hearing on this matter. As a U.S. senator in 1975, he was an engineer of the last major change in filibuster rules. It reduced from 67 to 60 the number of votes in the 100-member body needed to bring a question before the full Senate for final vote. He was also in the Senate when it became customary to set aside filibustered bills and take up other business. That “dual tracking” removed the need for those aiming to delay Senate action to actually stand and talk, à la “Mr. Smith Goes to Washington.”
Those changes were breakthroughs four decades ago. Today, they are insufficient. “They’re paralyzing the country,” Mondale said. “Our only hope is to amend the rule in some prudent way, so we get to the spot where we have debate, consideration, extended discussion, but not paralysis.”
Mondale recommends reducing to 55 the number of votes required to invoke cloture, ending a filibuster. He’s also interested in proposals to require those who filibuster to actually speak, not simply vote no on cloture motions. But he cautions that allowing the Senate to function while a filibuster is in progress may be necessary at times, and ought to remain an option.
Like Mondale, we reject calls to eliminate the filibuster entirely. Prolonged debate — when it actually involves talking — should have a reliable venue in American democracy. The filibuster through history has been used both to spur American progress and to impede it.
But we sympathize with Reid’s desire to spare executive-branch appointments from filibusters, a position shared by Minnesota Sen. Amy Klobuchar. The filibuster should be a megaphone that allows a minority to draw attention to its critique of majority policies. It should not be a roadblock to governance.
Its recent use by the GOP minority to cripple agencies Republicans wish did not exist — the Environmental Protection Agency, the Consumer Financial Protection Bureau and the National Labor Relations Board (NLRB) — crosses that line. So does using the filibuster to block judicial appointments, which Reid’s threatened change and Tuesday’s deal regrettably left unchallenged.
The deal, still unfolding at this writing, would fill leadership posts in agencies that had been in GOP cross hairs. It also calls for votes on two as-yet-unnamed new NLRB appointees later this month, but rejects two NLRB members Obama attempted to appoint when the Senate was in recess, only to be blocked by the courts.
Uncertainty thus still surrounds the NLRB — not to mention some 180 lower-level executive branch appointees and 23 federal district court nominees awaiting Senate approval. While it was welcome, Tuesday’s deal leaves the filibuster as available for obstructing presidential appointments as it has ever been. Only a rules change will allow the filibuster and orderly governance to coexist.