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July 15, 2013 5:21 PM The Nuclear Option and the “New Nullification”

By Ed Kilgore

Though bipartisan discussions are on tap for this evening, and there are rumors of efforts to create yet another “gang” to head off filibuster reform, Harry Reid has been gratifyingly clear about what will trigger Senate Democratic invocation of the “nuclear option:” filibusters against executive-branch presidential nominations. And what’s been even more gratifying is that (so far, at least) he’s resisted GOP overtures to defuse the crisis by letting Cabinet-level officials obtain up-or-down votes, while continuing to filibuster “minor” positions like the Director of the Consumer Financial Protection Bureau and vacancies on the National Labor Relations Board.

Indeed, Reid has scheduled votes on CFPB and NLRB confirmations before the Cabinet-level posts. And that’s precisely as it should be, not because of pressure from “liberals” or “union bosses,” but because the GOP tactic of shutting down agencies by denying them leadership or membership is a new, radical departure that congressional scholar Thomas Mann has accurately called “the new nullification.”

TNR’s Alec MacGillis has a good backgrounder today on the NLRB issue that makes the stakes of resisting the “new nullification” plain:

Many Republicans have never been particularly fond of the NLRB and did their best to install business-friendly people to the five-member board. But until recently they accepted it as the nation’s arbiter of workplace disputes in the never-ending balancing act between employer and labor….
From the start of the Obama administration, Republicans seized on the NLRB as a likely driver of his radical agenda. Never mind that Obama failed to push organized labor’s top priority, the Employee Free Choice Act, when he had the chance in 2009. Never mind that even many employer-side lawyers have acknowledged that labor law in the country is outdated and in need of a serious overhaul. Never mind that unions’ numbers have continued to dwindle during his tenure, making a mockery of McConnell’s and others’ warnings about the power of “Big Labor.” Never mind that the case that most infuriated Republicans—the NRLB general counsel’s finding against Boeing’s proposed move to nonunion South Carolina—was not issued by the full board and resulted in an eventual agreement between Boeing and the union. None of it has stopped Republicans from espying in even the most modest of rules issued by the board—requiring employers to post notice of workers’ rights!—the second coming of Trotskyism.
As the paranoia about the agency ratcheted up, Senate Republicans simply stopped confirming Obama’s nominees to the board, even though he held to the custom of naming two members from the minority party. Obama finally employed a controversial tactic to seat his nominees in a recess appointment. In January, the conservative-leaning D.C. Court of Appeals declared those appointments invalid, a ruling the administration has appealed to the Supreme Court, which will rule on the case next spring. Dozens of employers have seized on the appeals court ruling to declare that the many judgments that have been issued by the NLRB while the contested nominees are on board are null and void. Meanwhile, the board will be without a quorum of three members by the end of August, leaving it indisputably defunct. Obama recently submitted a full slate of five members to the Senate— again, three Democrats, two Republicans—but Republicans are vowing to filibuster them, arguing that the federal court ruling has rendered illegitimate the two Democratic nominees who were installed in the recess. But of course the recess appointments only came before the court in the first place because Republicans refused to allow them to come up for a vote.

This is use of the filibuster not to influence the president’s appointments, but to sabotage whole agencies, or at least make them hostage to demands that previously enacted laws they are charged with administering be radically changed without going through the normal legislative process. It’s a new and dangerous precedent McConnell and company are setting, and Reid’s right: it needs to be the first, not the last, type of filibuster reform to be imposed by the “nuclear option” if Republicans don’t back off.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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