By Michael A. Memoli and Lisa Mascaro
8:25 PM EST, November 21, 2013
WASHINGTON — Democrats made a historic change to Senate rules Thursday, ending the minority party's ability to use filibusters to block most presidential nominations and, in the process, virtually guaranteeing that the rest of President Obama's term will be dominated by executive actions and court battles rather than legislation.
In changing the long-standing rules with a near party-line vote in the middle of the session, Democrats brushed aside a century of congressional tradition and further embittered relations between the parties on an already deadlocked Capitol Hill.
The Senate Republican minority, which will see its power dramatically curtailed, threatened reprisals and characterized the rule change as a political power grab, comparing it to Obama's push to pass the landmark Affordable Health Care act in 2010 without bipartisan support.
The decision by Senate Majority Leader Harry Reid (D-Nev.) to deploy the so-called nuclear option means Senate confirmations of presidential appointments — except for Supreme Court justices — will proceed by a simple majority vote. Previously, a 60-vote threshold had become the norm to avoid a filibuster by the minority party. The change does not affect filibusters on legislation.
Over the years, Democrats and Republican have used filibusters to block nominations, but the practice became much more common in recent years.
"I realize that neither party has been blameless for these tactics," Obama said Thursday in supporting the rule change. "They've developed over years, and it seems as if they've continually escalated. But today's pattern of obstruction — it just isn't normal. A majority of senators believe, as I believe, that enough is enough."
Only three Democrats — Mark Pryor of Arkansas, Joe Manchin III of West Virginia and Carl Levin of Michigan — joined Republicans in the 48-52 vote.
Eleventh-hour offers of a deal from Republicans to allow some nominees to proceed were dismissed by Democrats as too little, too late. The unprecedented action injected unusual drama into the historic Senate chamber. At one point, Sen. Susan Collins (R-Maine), arguably the body's leading centrist, could be seen pleading with Reid to pull back from the vote.
For Democrats, the move is a calculated gamble that Republicans won't win both the White House and Senate majority in the 2016 election.
"You may regret it a lot sooner than you think," said Senate Minority Leader Mitch McConnell (R-Ky.). Referring to the vote as "Obamacare 2," he said, "It only reinforces the narrative of a party that is willing to do and say just about anything to get its way." In 2005, Republicans, who held the Senate majority, threatened a similar move but backed down after Sen. John McCain (R-Ariz.) led a bipartisan group that forged a compromise.
This time, the vote reflected the view of many Democrats that the chance of any major legislation passing the divided Congress over the next year already had dwindled to almost nothing. As a result, Reid and his allies felt they had little to lose.
"We'd much prefer the risk of up-or-down votes and majority rule than the risk of continued total obstruction," said Sen. Charles E. Schumer (D-N.Y.). "That's the bottom line no matter who's in power."
"I'd rather fight over policy," said Sen. Mark Begich (D-Alaska), who is running for reelection for the first time in the conservative state. "It's not a Republican or Democratic issue. It's that the American people are asking us to fix this system."
A filibuster is a Senate tool that enables a single member to delay or block a vote on legislation or nominations. In the past, members were required to take the floor and talk nonstop, but in recent years that practice has become rare as leaders instead simply acknowledge the member's objection and attempt to gather a 60-vote majority to break the filibuster.
The White House also seems resigned to a second term marked by congressional paralysis. Obama has indicated that he would use executive actions wherever possible to advance major items on his agenda, including efforts to combat climate change and implement his healthcare law. Immigration advocates have pushed him to use administrative actions to limit deportations.
That approach puts a premium on filling vacancies in executive agencies and in the courts that review executive actions — something that Republicans had succeeded in significantly slowing.
In the short term, the change paves the way for the confirmation of Obama's three pending appointments to the influential D.C. Circuit Court of Appeals. The court currently has eight judges, evenly divided between Democratic and Republican appointees. Because the D.C. Circuit handles most major cases involving Washington-based regulatory agencies, it is a prime forum where major Obama initiatives will be fought out.
The Senate will move first to confirm Patricia Millett, whose nomination to the D.C. Circuit was the vehicle for Thursday's action. The other two nominees to the court are expected to be approved after Thanksgiving. Rep. Melvin Watt (D-N.C.), who became the first sitting lawmaker in more than a century to face a Senate filibuster, is now also likely to be confirmed to lead the Federal Housing Finance Agency.
Republicans argued that Democrats were "breaking the rules to change the rules" by using a simple majority vote rather than a two-thirds vote to make the rule change. Democrats cited more than a dozen examples of other rule changes that were adopted in such a fashion in the last four decades. They also insisted that Republicans were likely to have made the same change to filibuster rules the next time they gained majority control of the Senate.
Democrats had been threatening to change the rules for nearly a year, but they held off in part because of hesitation by long-serving senators on their side of the aisle. But in recent days, several of the veterans joined recently elected Democrats who led the campaign to change the rules.
"I recognize that I could be back in the minority again, but that's OK if that happens," said Sen. Dianne Feinstein (D-Calif.), who just began a fifth term and who recently decided to support changing the rules. "I want, in the remainder of my five-plus years, to get something done, to be able to get nominees approved, to be able to get bills moved."
While Democrats said the immediate motivation for the rule change was the fight over nominations, the move to end filibusters was probably only a matter of time, reflecting the long-term shift in American politics toward ever-greater polarization, particularly over the last two decades.
Polarization of the two parties has reached levels not seen since the 19th century, according to studies by political scientists Keith T. Poole of the University of Georgia and Howard Rosenthal of New York University. Congress has moved toward a parliamentary system characterized by near-lock-step party voting and deep, consistent ideological differences between the two parties.
Bipartisan coalitions have dwindled, and so have incentives on other side of the aisle to bend the majority party's agenda. For both parties, winning a majority now comes with heavy pressure from constituents to actually adopt the majority's program. That made tools like the filibuster, intended to protect minority-party rights, appear more as an anachronism.
Republicans still have a number of procedural opportunities to delay Senate business, including some that are traditionally dispensed with as a courtesy to allow other issues to come to the floor. McCain, who was key to a deal last summer that defused the last Democratic threat to change filibuster rules, warned of the toxic atmosphere ahead.
"It'll be very poisoned," he said.
David Lauter in the Washington bureau contributed to this report.
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