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Not all filibusters are created equal

The stage is already set in the Senate for an important showdown that's likely to affect the future of the chamber, at least for the foreseeable future. Senate
Not all filibusters are created equal
Not all filibusters are created equal

The stage is already set in the Senate for an important showdown that's likely to affect the future of the chamber, at least for the foreseeable future. Senate Majority Leader Harry Reid (D-Nev.) is moving forward on seven confirmation votes on pending nominees, and if Republicans, as is their wont, use obstructionist tactics to prevent up-or-down votes, Reid says he's prepared to try to "nuclear option."

First, if Democrats decide to go down this road, will they have the votes to pull it off? It obviously matters -- it's entirely up to Reid; it's up to Reid and his 50 friends. As of the weekend, the Democratic leader said the support is in place.

After days of intense lobbying, Senate Majority Leader Harry Reid (D-Nev.) is confident he has enough votes to trigger the nuclear option to change the Senate's rules.Reid needs 50 votes for the controversial tactic, which Republicans say would forever "change the character of the Senate" but Democrats argue is necessary to fix a broken institution.Reid expects to have at least 51 Democratic votes to prohibit Republicans from filibustering President Obama's executive-branch nominees. Vice President Joe Biden could provide insurance by presiding over the chamber to break a tie vote.

Second, if the showdown comes to a head and neither side blinks, how far is Reid prepared to go? The scope of the Democratic plan is apparently quite narrow: "We're not touching judges. This is not judges. This is not legislation. This is allowing the people of America to have a president who can have his team ... in place," Reid said.

In other words, if the minority wants to derail legislation by requiring 60-vote supermajorities, that will still be allowed. If the minority wants to derail judicial nominees through filibusters, that would be permissible, too. All the "nuclear option" would do, at least in this case, is stop a specific kind of obstructionism: the minority wouldn't be allowed to prevent the Senate from voting on executive-branch nominees. That's it.

It would, in a very real sense, simply return the Senate to the way it used to operate for generations. Reid's move constitutes real procedural hard ball, but it would only make the Senate slightly less dysfunctional than it is now.

As for whether Reid should do this, I don't think Republicans have left him with much of a choice.

In the bigger picture, the GOP minority is saying Reid's plan goes too far, while those of us who believe the Senate should be a majority-rule institution can argue the plan doesn't go nearly far enough. But what I'm specifically interested in are the consequences of the obstructionism.

Senate Minority Leader Mitch McConnell (R-Ky.) has said he and his caucus have not rejected any of President Obama's cabinet nominees through filibusters, and that's true. They blocked a vote on Chuck Hagel's Defense nomination -- the first time that's ever happened in American history -- but he ended up getting confirmed anyway.

But what's really driving this are two more obscure agencies: the Consumer Financial Protection Bureau and the National Labor Relations Board. President Obama has sent qualified nominees for these agencies, the nominees have cleared committee, and they're awaiting floor votes, which Reid has scheduled for this week. Republicans have said they'll allow up-or-down votes on Obama's cabinet nominees, but not his nominees for the CFPB and the NLRB.

I know this gets a little wonky/nerdy, and obviously seems like inside baseball, but stick with me.

The Senate Republican minority isn't saying they oppose these specific Obama nominees and want him to pick someone else; they're saying they oppose the Consumer Financial Protection Bureau and the National Labor Relations Board themselves, and will oppose every Obama nominee, regardless of merit or qualifications.

What the Senate Republican minority intends is to effectively nullify federal law by blocking these agencies from having the leadership necessary to function. This, quite literally, has never happened before in American history -- we've never had a situation in which a minority of the Senate prevented the executive branch from faithfully executing federal law by blocking votes on executive branch nominees.

I don't like filibusters on judicial nominees, but the judiciary will still exist if GOP senators block a nominee here or there. I don't like filibusters on cabinet nominees, but someone can serve as an acting secretary until someone is confirmed. But when it comes to the CFPB and the NLRB, we're talking about a very different animal -- Republicans don't want these agencies to exist, so they're using unprecedented procedural abuses to make it impossible for the agencies themselves to function.

It's extortion politics at its most extreme, and just as a matter of Civics 101, it can't continue.

The Senate Republican minority has said they'd consider allowing a vote on a CFPB nominee if Democrats agree to gut the law that created the CFPB. That, however, is ridiculous -- If Senate Republicans want changes to the CFPB, there's already a mechanism in place that allows them to pursue reforms: it's called the existing legislative process. Senators can write a bill, send it to committee, try to persuade their colleagues of the proposal's merit, debate it on the floor, vote for it, etc.

But that takes time and effort, and it might not work, especially since the changes the GOP wants are absurd. So, instead, Republicans intend to block existing federal law from taking effect.

McConnell thinks if Reid pulls the trigger on the nuclear option, it will break the institution. That's backwards -- it's McConnell who's causing unprecedented breakdowns in the political process, forcing Reid's hand.