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I received this e-mail today from Senator Jeff Merkley's (D. OR) office today:
Hi, I'm Mike Zamore, Senator Jeff Merkley's chief of staff. I want to share some good news: The Senate stands at the edge of finally breaking through the gridlock plaguing President Obama's executive nominees.  
WASHINGTON, DC - JANUARY 22:  U.S. Senate Majority Leader Sen. Harry Reid (D-NV) speaks to the press after the weekly Senate Democratic Policy Luncheon January 22, 2013 on Capitol Hill in Washington, DC. Reid briefed the press on Senate Democratic agendas.  (Photo by Alex Wong/Getty Images)

Tomorrow, the Senate is scheduled to vote to break Republican filibusters on seven nominees for critical positions. If Republican Senators continue to block any of them, Leader Reid is prepared to change Senate rules so that the minority is no longer able to block votes on executive branch nominees. He is confident he has at least 51 votes. We have reached this point because of your tireless support of Senator Merkley's fight to fix the broken Senate by changing the filibuster rules. You have helped turn this from a lonely crusade to a national movement.

Right now, the entire U.S. Senate -- Democrats, Republicans, and Independents -- is gathered in an historic closed-door Senators-only meeting in the Old Senate Chamber in the Capitol. I'm sure some senators will use tonight's meeting to try to strike another "Gang of X" compromise -- some kind of gentlemen's agreement to avoid a rules change in exchange for a promise of better behavior. But the time for gentlemen's agreements is over. A bipartisan re-examination of the rules would be welcome, but the promise of more discussion cannot substitute for action on these nominees now. It's time to make the Senate work for the American people, not the special interests.

To change the filibuster rules tomorrow, the Senate would vote that its interpretation of its own rules mean that executive branch nominees are not subject to a supermajority vote to end debate. Because the Senate is the final arbiter of its own rules, that new precedent would stand. Senator Mitch McConnell is fond of saying that this would be "breaking the rules to change the rules." Of course, he supported using this procedure on judicial nominations during the Bush Administration. The fact is, changing the rules by reinterpreting the rules is common. Since 1977, the Senate has used a simple majority to change its rules in this manner 18 times.  

Senator Merkley has been working closely with Leader Reid and his colleagues to make the case that the time to take this step has come again. Make no mistake: Senate Republicans have worked to systematically cripple our progressive agenda by blocking the President's nominees from even receiving a vote. They are trying to prevent the federal government from effectively enforcing laws holding polluters accountable, protecting working families from predatory financial practices, and policing labor law so employees get a fair shake in the workplace. Instead of trying to win the next election or change laws they don't like, they're trying to undo the effect of the last election and deny the President the right to hire the team he wants.  

We're way beyond any founder's notion of "advise and consent." Senator Merkley has proposed rules changes, including this one, that he would be comfortable living with in the minority and that respect the traditions and role of the Senate. The fact is, the unprecedented change to the Senate has already happened -- rules changes are needed to restore the Senate's traditional role, so it can be responsive to the public and to our country's need for solutions.  

All my best,

Mike Zamore

Preparing for this meeting, Senator Merkley sent to his colleagues last week where he reminds them of times when the Senate used the nuclear option:
The notion that changing Senate procedure with a simple majority vote is ‘changing the rules by breaking the rules’ is an absolute falsehood. As a Republican Policy Memo put it in 2005 (during the Republicans’ attempt to institute the same procedural change for judicial nominees that is currently under consideration for executive nominees):

The Senate has always had, and repeatedly has exercised, this constitutional option. The majority’s authority is grounded in the Constitution, Supreme Court case law, and the Senate’s past practices….An exercise of the constitutional option under the current circumstances would be an act of restoration – a return to the historical and constitutional confirmation standard of simple-majority support for all judicial nominations.

Indeed, the Senate appears to have changed its procedures by simple majority (by voting to sustain or overturn a ruling of the Presiding Officer, the precise procedure under consideration today) 18 times since 1977, an average of once every other year.

The most relevant example for our current debate comes from March 5 1980, when Majority Leader Byrd used the exact same procedure to eliminate filibusters on motions to proceed to nominations. The Presiding Officer ruled that Rule XXII and precedents under it allowed debate (and therefore filibusters) against motions to proceed to specific nominations, but Senator Byrd appealed the ruling and it was overturned on a 38-54 vote.

Majority Leader Byrd also established new rules by simple-majority vote that were in direct contradiction to the plain language of the written Standing Rules of the Senate. On November 9 1979, he established a requirement that the Presiding Officer rule on questions of germaneness when a point of order against legislations on appropriations bills is raised. Rule XVI clearly requires that the Presiding Officer submit such questions to the Senate without ruling, but Senator Byrd asserted a point of order that the Presiding Officer should not submit the question to the Senate in certain circumstances. The Presiding Officer sustained the ruling. It was appealed but the ruling was sustained by a vote of 44-40.

Merkley goes on to name several occasions of the Senate's use of the nuclear option which you can read here:

Thank you all for continuing to put pressure on Senate Majority Leader Reid and several Democrats.  Please do keep leaving messages and contact your Senator tomorrow morning and tell them to go nuclear:

Originally posted to pdc on Mon Jul 15, 2013 at 08:42 PM PDT.

Also republished by Koscadia, PDX Metro, Climate Change SOS, LatinoKos, In Support of Labor and Unions, Climate Hawks, The Democratic Wing of the Democratic Party, Repeal or Amend the Second Amendment (RASA), Shut Down the NRA, Pittsburgh Area Kossacks, Philly Kos, DKos Pennsylvania, North Carolina BLUE, South Dakota Kos, LGBT Kos Community, Virginia Kos, Maryland Kos, California politics, Los Angeles Kossacks, New York City, Colorado COmmunity, New Mexico Kossaks, Massachusetts Kosmopolitans, Take New Hampshire Forward!, Louisiana Kossacks, and Daily Kos Oregon.

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