In 2009, we learned that the Senate rules, which require a 60-vote supermajority on virtually every motion, blocked our economic change agenda. Absurdly, this 60-vote requirement is necessary even for a motion to adjourn. Only the U.S. Senate, of any parliamentary body in the world, operates this way — more like the Senate of ancient Rome than a 21st century democracy.
In 2010, we began Fix the Senate Now, a broad coalition of membership and democracy groups that realized that meaningful change was impossible without reversing the obstruction that had become the norm in the Senate. A combination of party polarization, complacency and misplaced seniority had converged to allow the so-called filibuster, one that now doesn’t require any talking, to prevent debate and resolution.
Fix the Senate Now focused on changing the rules at the convening of both the 112th and 113th congressional sessions (2011 and 2013). At the beginning of each Congress, rules are adopted for that Congress. In both instances, despite great leadership by Senators Tom Harkin, Jeff Merkley and Tom Udall and more than 40 senators ready for change, we failed. These changes would have placed the burden on the minority of 41 senators to show up and speak if they wanted to block a motion for legislation, a presidential nomination or adjournment for a recess.
Since President Obama’s inauguration in 2009, Senate Republicans have done everything possible to block his executive and judicial nominations. Each required a motion, and given the now normal practice of delaying legislation, it was even easier to block nominations. Article II of the Constitution clearly provides for confirmation by a majority vote, but procedural delays, now requiring 60 votes to move anything forward, prevented the majority vote.
As Presidents Bush and Clinton had also done, President Obama used his constitutional power to make recess appointments to fill the gap and keep federal agencies running. But now the Senate could not adjourn before a recess. The Republican minority believed that without adjournment, recess appointments were not possible. In the minority’s game plan, federal agencies like the National Labor Relations Board (NLRB), Consumer Financial Protection Bureau (CFPB) and Environmental Protection Agency (EPA) could be impaired, if not completely shut down, if the president could not make recess appointments.
In 2012, faced with the shutdown of the NLRB and CFPB, President Obama recess-appointed three members of the NLRB (bringing the total to five) and Richard Cordray as CFPB director. A year later, and one day after the Senate narrowly decided to leave its rules unchanged, the D.C. Circuit Court of Appeals ruled that since the Senate had not adjourned, the recess appointments to the NLRB (and others) were invalid. The Court then overturned a case decided by the NLRB after the recess appointments were made.
In 2013, Fix the Senate Now, focused on the shutdown of federal agencies, as well as the inability of this president to make judicial appointments. More than 2 million Americans mobilized and demanded that the Senate use its constitutional powers to get an up-or-down vote on the president’s nominees to the NLRB, CFPB, EPA and other agencies. The coalition included labor, led by CWA, greens, financial reformers, foreclosure fighters and others. This is a foreshadowing of the 50 million activists we must mobilize for democracy and economic justice.
Literally on the eve of a vote to change the procedure on nominations, enough Republicans told Democrats they would agree to a vote on the NLRB, CFPB, EPA and other key nominations, and all five NLRB members were confirmed! A few months later as part of the deal the General Counsel of the NLRB was also confirmed.
In November, the Republican minority again blocked other nominations and after weeks of discussion, Senate Majority Leader Harry Reid led the caucus and they changed the rules to provide that a simple majority of the Senate could order an up or down vote on all nominations. This was a critical step towards the fundamental reforms that are needed to make the Senate function as it must if we are to have a 21st century democracy!
The Democracy Initiative had helped lead this effort and proved its value in its first year. Fix the Senate Now remains a critical part of the Democracy Initiative’s work as there still remain too many ways for the minority to prevent discussion and debate on key issues we face.