The Democrats' Threat to 'Go Nuclear'

Progressives plot to dramatically shift constitutional powers to Obama.

Yesterday, in an angry speech given on the Senate floor, Majority Leader Harry Reid (D-NV) warned he would go "nuclear" and change the Senate rules in order to end filibusters on President Obama's executive branch nominations. “Senator [Mitch] McConnell broke his word,” Reid fumed. “The Republican leader has failed to live up to his commitments. He’s failed to do what he said he would do--move nominations by regular order except in extraordinary circumstances. I refuse to unilaterally surrender my right to respond to this breach of faith.” Reid can sanctimoniously frame this effort any way he wants, but his real agenda is to dramatically shift power to the executive office, a move that President Obama is anxious to exploit to impose his radical policies through bureaucratic means.

Invoking the nuclear option would be a two-step process. First, Reid would push through the rule change itself with a simple majority, instead of the 67 votes it currently requires. After that, ending a filibuster would only take a 51-vote majority, rather than the current 60-vote threshold. During his speech, Reid cited Republican efforts to delay the nominations of Defense Secretary Chuck Hagel and CIA Director John Brennan. Republicans have promise to filibuster Richard Cordray, along with other nominees for the Consumer Financial Protection Bureau (CFPB), unless Democrats are willing to limit the power of that agency. “It is a disturbing trend when Republicans are willing to block executive branch nominees even if they have no objection about the qualification of the nominee,” Reid said. “They’re blocking qualified nominees because they refuse to accept the law of the land.”

The law of the land is a slippery term when it comes to Democrats in general and this administration in particular. In January 2012, President Obama attempted to implement an unprecedented use of recess appointment powers to install people at the CFPB and the National Labor Relations Board (NLRB), despite the reality that the Senate was not in recess at the time. The U.S. Court of Appeals for the D.C. Circuit ruled against the president, calling the move unconstitutional. On June 24, the U.S. Supreme Court announced it would hear the case, National Labor Relations Board v. Noel Canning, which will determine the scope of executive recess appointment power. If the Court rules in favor of the president, it would essentially eviscerate the Senate's role in vetting presidential nominees.

But Reid is threatening to eviscerate this power of the Senate himself by curtailing the ability of minority members to conduct filibusters. Yesterday he emerged from a closed-door meeting with the Democratic Caucus and reiterated his threat, warning the GOP to drop its objections to the president's appointments for both the NLRB and the CFPB. “[W]e have the votes to move forward on this,” Reid told reporters.

Maybe not. As of now, Sens. Carl Levin (D-MI) and Mark Pryor (D-AK) refuse to go along with the idea, while Sens. Patrick Leahy (I-VT)), Max Baucus (D-MT) and Jack Reed (D-RI) remain undecided. Since Democrats have 54 senators, such defections could scuttle Reid’s plans. In the event of a 50-50 tie, Vice President Joe Biden gets to cast the tie-breaking vote. Biden has indicated he would side with Reid.

The roster of pending nominations include three individuals for the D.C. Circuit Court of Appeals, five for the NLRB, three for CFPB (including Cordray), Labor Secretary nominee Tom Perez and EPA nominee Gina McCarthy. “I’m going to start the process today,” Reid said Thursday. “We’re going to file cloture on a bunch of nominations. And those votes will occur next week.”

Sen. McConnell, clearly upset by Reid's speech and accusations, noted that it was Reid who breached an agreement made last January not to make any Senate rule changes without following the regular order. McConnell was equally upset by Reid's threat. “I just hope the Majority Leader thinks about his legacy, the future of his party, and most importantly, the future of our country before he acts.” McConnell warned. “Senate Democrats are gearing up today to make one of the most consequential changes to the United States Senate in the history of our nation. And I guarantee you, it is a decision that, if they actually go through with it, they will live to regret.”

That assessment has a familiar ring. The hypocritical Harry Reid made almost identical pronouncements in 2005 when Republicans had control of the Senate and Democrats were engaged in the process of repeatedly blocking former President George W. Bush’s nominees for the federal courts. Republicans also considered implementing the nuclear option at the time, but backed away when the bipartisan “Gang of 14” emerged to facilitate the nomination process. As Reid bemoaned at the time,

For the past several months, the Senate has operated under a nuclear cloud. As a result of the Senate’s decision to reject a small number of President Bush’s judicial nominees, the Republican majority has threatened to break the Senate rules, violate over 200 years of Senate tradition and impair the ability of Democrats and Republicans to work together on issues of real concern to the American people.

Now that Reid is in control, he has changed his tune. But his sudden change of heart is disingenuous. McConnell, who characterized Reid's accusations of Republican obstructionism as an “absolutely phony, manufactured crisis,” revealed that at least two of the nominees opposed by Republicans, McCarthy and Perez, can already garner more than the 60 votes needed to overcome a filibuster. What is really behind Reid's about-face, McConnell illuminated, is that the Democrats and their Big Labor backers "want ... the Senate to ratify the President’s unconstitutional decision to illegally appoint nominees to the NLRB and the CFPB without the input of the Senate."

The reasons for that is fairly obvious. Much of Obama's agenda is DOA in Congress, and installing apparatchiks, who will implement his un-passable policies administratively, will allow the president to bypass Congress and impose his will by fiat. As for the far Left and Big Labor, which overwhelming represents government unions, their agenda has been seriously undermined by the aforementioned D.C. Circuit Court of Appeals ruling, along with a slew of other stunning successes for free market labor policies, including Wisconsin Governor Scott Walker's victory limiting the power of government unions and the previously unimaginable right-to-work law recently enacted in Michigan. In short, the government union lobby senses its waning influence and is desperate to secure an avenue of power by whatever means necessary -- and it knows that the window of opportunity may be closing.

The NLRB is one such powerful perch that radical labor activists hope to infest. Think back to the board's 2011 attempt to dictate where Boeing airlines could do business, which it did in order to placate Boeing’s labor unions in Washington State. If NLRB members are not confirmed by August, the board will cease to function, leaving labor decisions to regional NLRB offices.

As for some of the other nominees, CFPB nominee Richard Cordray would be a disastrous choice to head the consumer protection agency birthed by the Dodd-Frank comprehensive financial reform bill. As Bloomberg News reported in 2011, Cordray was an enthusiastic supporter of Empowering and Strengthening Ohio’s People (ESOP) during his stint as state treasurer. ESOP is a left-wing guerrilla activist group with a penchant for storming banks and private residences.

EPA nominee Gina McCarthy was one of disgraced former EPA head Lisa Jackson's top lieutenants and author of some of that agency's most economy-crushing carbon rules. As the Wall Street Journal notes, McCarthy "has been a notably willful regulator, even for this Administration. Her promotion is another way of saying that Mr. Obama has given up getting Congress to agree to his anticarbon agenda, especially given the number of Senate Democrats from coal or oil states."

Thomas Perez may be the most radical nominee of all. Prior to his nomination for Secretary of Labor, Perez was the Assistant Attorney General for Civil Rights at the Justice Department, where he was a more-than-willing perpetrator of that agency's radical and racially polarizing agenda. His efforts included wars against photo ID for voting, attacking banks for not granting enough mortgages to “people of color," (reprising the same tactics that led to the financial collapse of 2008), and suing state fire and police departments for not hiring black applicants who failed employment tests.

These are the nominees Obama needs to install by any means necessary if he is to have any hope of expanding his radical agenda while there is still time left. McConnell made the intentions of Reid and his fellow Democrats clear. “They want the power, and they want it now. They don’t care about the consequences,” he contended. He spoke to Politico regarding what may happen next. “We’ve requested a meeting of all Senators. We haven’t had one of those this year,” he said. “This is a matter of extreme importance to the institution and the country, and we think we ought all get together to discuss. We’re happy to do that as soon as possible.”

Reid said he’d consider such an idea: “I’m happy to have a joint meeting ... I want this resolved, and I want it resolved one way or the other."

When working towards that resolution, Harry Reid would be very wise to remember one of the oldest political adages ever: what goes around, comes around. Despite their current hubris, Democrats will not control the levers of power forever. They need to think long and hard about the long-term consequences that would arise from the recklessness of invoking the nuclear option -- lest they become victims of their own making at some future point in time.

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