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By Tom Cushing

Nuclear Option Averted; Whirled Peas Reign

Uploaded: Jul 17, 2013

While America slept, our stalwart government has saved us from a fate worse than ? gridlock? Perhaps? This week, our Senators worked tirelessly, 'til way past quitting-time one evening, to forge an agreement for the Ages, if your age is denominated in weeks.

You may have missed it, so let's review. The GOP minority caucus in the Senate has made the filibuster, an arcane piece of political theater, into a centerpiece of their Obstruction Strategy. They have thereby monkey-wrenched executive Branch appointments and federal court judgeships, in addition to routine legislation.

But wait ? there's more – under current rules they haven't even had to actually filibuster to achieve those results, but just threaten so to do, and they've thereby brought the machinery of government to its knees. In acquiescing this week, they relented on a few Executive appointments in return for withdrawal of others – and retained the right to extend their minority rule into the future.

The filibuster – defined as a dilatory tactic in which members of the minority attempt to stall action on an issue by talking it to death, has a history that dates back to the Roman Senate. In our own American experience, where procedural rules allow it (e.g., the or symbolic gestures.

Thus, the ever-vigorous segregationist Strom Thurmond filibustered a 1950s civil rights act for a record 24-hours and 18 minutes, and Rand Paul recently held forth on drone policy for almost 13 hours. In a mixture of the two purposes, TX state senator Davis opposed an anti-abortion bill long into the last night of the annual legislative session. It later passed, anyway. Senate, but not the House, and in roughly half the states), it has traditionally been reserved for extreme cases,

Various rules apply to regulate filibustering. The generous Senate rules no longer even require actual follow-through, but only the announced intention to filibuster. In TX however, one cannot stray from the topic, take a bio break or even lean on the podium. There is, however, no truth to the Andy Borowitz-fueled rumor that TX speakers will henceforth have to ride a mechanical bull for the entire duration.

"Cloture" is the process of ending debate and proceeding to a vote. Senate rules require a super-majority of 60 votes – several more than the Democrats can muster on their own. While it's not clear to me that that's constitutional (since the Constitution denominates only a few specific instances in which a super-majority is required), that's the stuff of an even more obscure column. The upshot is that the GOP enjoys the luxury of minority rule whenever it invokes the filibuster – which has been very often since 2009.

This week, the long-suffering Dems finally hissed a major fit and threatened to change the rule to require only a majority to invoke cloture. Not to be outdone, the GOP breathlessly dubbed this minor change a "Nuclear Option," evoking mental images of its Chamber in smoking ruins. While that hyperbole was less effective than they hoped (a majority of the electorate reportedly 'liked' that image on Facebook), it did incent to timid Dems to pull back from that brink, and settle the matter in a smoke-free room. They once again settled for too little.

You see, there's a big difference among filibuster topics: executive appointments, judicial appointments and bills. The latter are fair game. In most instances it is importantly cathartic for the minority and they are eventually voted-down. In exceptionally rare instances, the tactic may shine light on an important matter being ushered through the approval process in darkness – all well and good.

Judicial nominations occupy a middle ground. They are part-and-parcel of what winning the White House should mean that you get to do, but judges enjoy lifetime tenures – usually far beyond the term of the sitting President. Occasionally, there's also an absurd misstep – does anyone recall the name Harriet Miers? So, there really is some enduring impact and a significant check on the process involved in the Senate's "advise and consent."

Executive appointments, however, simply should not be filibustered. The Prez ought to enjoy broad latitude to form his own team, whose impact does not exceed that President's term of office. The Republic has survived atrocious appointments – like Interior chief Watt and EPA Director Gorsuch, who both sought to destroy their Agencys' influence. Conversely, the new and duly-constituted Consumer Financial Protection Board has been hamstrung in getting started by the GOP's months-long refusal to vet the President's nomination. That's dirty pool, in my view, and damaging to the common good, defined as "things the electorate has a right to expect when they elect somebody."

The deal struck this week frees the nominations CFPB chief Richard Cordray and six other immediate appointments, but ends the prospects of two NLRB appointments as face-savers (how would you feel about your nomination being horse-traded away? Yikes). It reserves the GOP's discretion to filibuster future appointments. We are told that the Dems acceded out of concern that the same rules change might apply to them in a minority future. Of course, it could anyway, if a future Republican majority so chooses.

In other words, it's a timorous hostage deal for half the nominees, with no assurance that more prisoners won't be taken later – when alternatively, a simple rule change would have freed them all, and dramatically improved prospects for future doing of The People's work, from either side of the aisle. Perhaps there's a reason we say we don't negotiate with terrorists – by now the Dems might have given away Long Island.