The abuse of the Senate filibuster is Washington's biggest structural problem, and recently, we saw how that problem could turn into a crisis. A series of sweeping federal court decisions struck down President Obama’s recess appointment of members of the National Labor Review Board (NLRB) and imposed unprecedented limits on the President’s recess appointment power.
These decisions are alarming because Recess appointments have become a necessary tool to cope with relentless filibusters of Presidential nominees. By blocking these nominees, Republicans have kept several key agencies from functioning.
If the courts’ decisions are upheld by the Supreme Court, Senate obstructionists would gain even more power. That is why we cannot wait any longer to fix the Senate.
Yet, every indication suggests that Congress won’t act unless the public demands it. And the public should demand it, because the way a President constitutes his or her cabinet has completely broken down.
It is common sense that a President ought to have a cabinet of his or her choosing. We settle the question of who is in charge of the executive branch every four years. The winning President earns the right to choose the people who will help him or her run the country.
The Senate plays a role in approving the candidates. But unless the President proposes someone who is corrupt, unqualified, or extreme, the Senate has traditionally respected those choices.
In contrast, this Senate minority has abused the filibuster by holding up the President’s highly qualified cabinet picks without any legitimate reason. Months into President Obama’s second term, a number of his nominees face grim chances of being confirmed because of unyielding minority opposition. This tactic effectively strips the President of the right to appoint a cabinet and goes against the way the Senate has always operated.
It is even more egregious that Senate Republicans have vowed to block President Obama’s nomination of Richard Cordray to serve as director of the Consumer Financial Protection Bureau (CFPB) for the sole reason that they oppose the very existence of the agency.
This is the first time in Senate history that a nominee has been held up because of objections to the law that created the agency. It is shockingly undemocratic to use the filibuster this way. The minority lost the vote on creating the CFPB; they should not be allowed to hold the agency hostage by depriving it of a director.
Misuse of the filibuster is also seriously disabling our courts. Ten percent of the Federal bench remains empty and judicial nominees languish for longer than six months. Meanwhile, caseloads continue to increase.
Lastly, the Senate now operates under an unwritten understanding that virtually all legislation must get sixty votes to pass – not a simple majority. This is because Senate rules require sixty votes to end a filibuster. This de facto requirement of a supermajority has brought Senate business to a grinding halt on important issues affecting middle class families.
What we are seeing is not the use of filibusters; it is the abuse of filibusters. And it has a direct impact on American lives. Critical positions in the Administration are left unfilled, making it difficult to enact policies, handle crises, and serve the public. Judicial vacancies have led to longer case processing times and overburdened courts. And Congress’s ability to pass laws that matter to the public has been severely handicapped.
However, the Senate has been reluctant to make any meaningful changes to the use of filibusters because reform is portrayed as dangerous and radical. This characterization is wrong-headed. It is not radical to return to the way the Senate conducted business for most of its history.
What is truly radical is to allow this anti-democratic dysfunction to continue. It is time to fix the Senate. To overcome the fear mongering of filibuster reform, the public must make this a top priority. I urge Americans to tell their Senators to stop the abuse of filibusters and to keep the pressure on until they do.