The constitutional crisis du jour has been averted. The Senate will proceed with the confirmations of most executive branch nominees that have been held in limbo by Senate Republicans threatening a filibuster, including new chiefs for the Environmental Protection Agency, the Department of Labor and the new Consumer Financial Protection Bureau. The CFPB was a key component of the Dodd-Frank financial reform bill signed into law in 2010, but has not been able to assume its full powers without a confirmed director—that it will now able to do so, three years after the agency was created, is what passes for progress in today’s Washington. In exchange, the White House will need to agree to submit two new Democratic nominees for the National Labor Relations Board—Republicans are refusing to confirm the two he nominated by recess appointment last year, as if that process (which was ruled invalid by a federal court) had tainted the two nominees themselves to the point where any other Democrats would be preferable. A Senate aide confirms that the Republicans have agreed to let through whomever else Obama picks in their place. Pity the two nominees, who have gone through vetting hell and have served on the board for months now with essentially nothing to show for it, but hey, it’s a rare free shot for Obama. Van Jones? William Ayers? The ghost of Big Bill Haywood?
It may seem puzzling at first why the Republicans would’ve given in on most of the nominees in exchange for naught but a face-saving swap of pro-labor faces on the NLRB. Senate Majority Leader Harry Reid seems to have emerged from his strikingly persuasive brinksmanship with even the right to continue to press further for filibuster rules changes down the line. What gives? Why weren’t Republicans more willing to let him go nuclear? Doing so would’ve allowed them to glory in the moral high ground and, once they won back the Senate as seems quite possible in the next few years, seek righteous revenge by breaking the filibuster for purposes far more consequential than confirming nominees to a few second-tier departments.
Others have already noted one reason for Republicans to pull back from this outcome: they could already undo plenty of the Obama legacy with a mere 51 votes—via the budget reconciliation process, which could, for one thing, do grave damage to Obamacare. But I would suggest another theory: that Republicans pulled back, in part, precisely because of the likelihood of how things would play out in the full post-filibuster revenge scenario. Here is Sen. Lamar Alexander, the Tennessee Republican now considered among his caucus’s more reasonable voices, laying out the threat for reporters yesterday:
What’s at stake here is not just a change of the rule, it’s the way the rule is being changed. What it means is that with 51 votes, any majority can do anything it wants on any day in the United States Senate. It can change abortion rights. It can change civil rights. It can change environmental laws. It can change labor laws. Today, the House can do that, and when it comes to the Senate, we stop and think and consider. But after this, whoever has the majority can do anything it wants, on any day. That is a dangerous trend.
Got that? The Republican threat of what the party would do if the filibuster were to crumble is a list of things that a veteran Republican senator himself frames as being way-out-there and part of a “dangerous trend.” If the filibuster falls away, Alexander is saying, my own party will undermine abortion rights (which are, at the most basic level, supported by a majority of Americans). It will “change environmental laws”—who knows which ones, maybe even Republican-signed, widely accepted ones like the Clean Air Act and Clean Water Act? It’ll even “change civil rights,” whatever that means—since the Voting Rights Act has already been severely weakened by the Supreme Court, what’s left to be “changed”? The Civil Rights Act itself, and the tyranny, lamented not long ago by the senator from the state bordering Alexander’s Tennessee, of forcing businesses to serve people of all colors?
I don’t mean to mock Alexander, but rather to praise him for his candor. Implicit in his argument is that this agenda would not be a very popular one. It would most assuredly not help the party in its fitful efforts to win over women and nonwhite Americans and younger people. But the party would charge forward with it anyway, unbounded by the threat of a filibuster, regardless of the lasting toll it would pay at the polls. Far better, Alexander and other GOP veterans know, to continue as the party has been in the world of the filibuster: obstructing the Democratic agenda, muddying the waters to the point where many voters are unsure whom to hold accountable for Washington dysfunction, without the country getting to see once and for all what the party would do when it can “do anything it wants, on any day.”
Alec MacGillis is a New Republic senior editor. Follow him @AlecMacGillis.