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No Deal Yet on ‘Nuclear Option’ After Senate Joint Caucus

A Senate standoff over filibusters looms Tuesday morning, even though Senate leaders pledged to continue discussions about how to avoid the “nuclear option” during a rare bipartisan meeting of the whole chamber.

“It was very constructive. It was great to allow everyone to have a forum and weigh in. I was really glad we did it, and sometimes these things, if they simmer overnight a little bit, you might, you might get a breakthrough,” said Arkansas Sen. Mark Pryor, one of the few Democrats who has opposed his leader’s plan to end filibusters of executive branch nominees by simple-majority procedural move.

Senators described the tenor of the more than three-and-half-hour joint caucus meeting in the old Senate chamber as positive, but they left without much optimism that an agreement would be reached by Tuesday morning.

Sen. John Thune, R-S.D., said disputed appointments to the National Labor Relations Board remained the main sticking point.

“The two NLRB appointments are really, really difficult for Republicans who believe they were illegally made. And that comes back to an issue of the separation of powers, and whether or not we’re going to concede to the executive the power to decide when Congress is or is not in session,” Thune said. He was referencing temporary appointments that President Barack Obama made but which were declared unconstitutional by federal courts. Republicans have suggested that if Obama selected new NLRB picks, it might help alleviate the impasse.

But Sen. Tom Harkin, D-Iowa, said he would oppose any deal that replaces the Democratic nominees to the NLRB, Sharon Block and Richard F. Griffin Jr. — one of the possible scenarios under discussion.

“If it’s a deal to somehow cut out Sharon Block and Richard Griffin from going on the NLRB then I am going to be standing up because I think it would be grossly unfair to throw them out simply to make a deal when they’ve done nothing wrong,” Harkin said.

Sen. Lamar Alexander, R-Tenn., said he couldn’t “imagine that the White House doesn’t know a couple of very good labor leaders who’d like to serve on the NLRB.”

Asked if he thought that the White House would firmly support a Democratic-led rules change, Harkin paused for a time before answering. He said he has told Obama since he was first elected that he needs to get rid of the filibuster or he can forget passing any legislation.

Majority Leader Harry Reid, D-Nev., appeared before the cameras after the meeting very briefly to say only, “We had a very good conversation. The conversation is going to continue tonight. Votes are scheduled for 10 in the morning.” (Later, Senate aides said votes would most likely come around 11 a.m., after the 10 a.m. swearing-in of Sen.-elect Ed Markey, D-Mass.)

Minority Leader Mitch McConnell’s office also noted that talks were in progress.

“A clear bipartisan majority in the meeting believed the Leaders ought to find a solution. And discussions will continue,” said Don Stewart, a spokesman for the Kentucky Republican.

There were already signs of trouble, however. Sen. Rand Paul, R-Ky., said that he was concerned about any agreement that could curtail his ability to use procedural holds to get answers to questions from the Obama administration, including a recent inquiry he made regarding the use of domestic drones. As leverage, he’s holding up the nomination of James Comey to be FBI Director.

“I’ve got a hold right now on the FBI appointee. Not because I have anything against him, but because I want to know are we flying drones across America, and are there any rules, are they obeying the Bill of Rights,” Paul said. “I can only do that because it takes 60 votes to get the FBI director in if someone threatens to filibuster. So, the filibuster’s a wonderful tool for trying to get information. The president usually wins.”

Alexander said that in his view, much of the frustration exhibited in the old Senate chamber was more about legislation than nominations, even though Reid’s plan applies narrowly to the executive branch and not judicial picks.

“My conclusion is that it was a very useful meeting. I’m very glad Sen. Reid and Sen. McConnell called it. We had a frank exchange of views and I hope they work out an agreement,” Alexander said.

A senior Democratic aide said that staff would continue to meet, but no breakthroughs were expected until morning, if they ever come about. Without a deal, the Senate will move forward on a series of up to seven test votes on executive branch nominees. If Republicans filibuster one or more of the nominees, Reid could call for a ruling that such blockades are not permitted. If the presiding officer rules that they are allowed, a vote might then take place on overturning the ruling of the chair. However, Reid does not necessarily have to make the procedural move on Tuesday. Another Senate Democratic aide indicated that it could come later this week or next.

The nomination of Richard Cordray to head the Consumer Financial Protection Bureau is slated to come up first on Tuesday, and sources said Cordray’s chances of drawing the 60 votes needed to beat back a filibuster had improved. If Cordray is not filibustered, the Senate could spend up to eight hours debating his nomination before moving to a final confirmation vote. That debate time also could give senators more time to work out an agreement on the NLRB nominees, who would face their filibuster test votes after the Cordray confirmation.

Sen. John McCain, R-Ariz., who is trying to broker a broad agreement, said that talks are ongoing. “Still working, still working away, still discussion options,” McCain said. “It was a good meeting, good exchange of views, but still no conclusions,” adding that it’s the eleventh hour. McCain said that the leaders would “continue to negotiate and continue to talk and then, I am afraid the majority leader may schedule a vote unless we reach some agreement.”

Sarah Chacko contributed to this report.

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