Skip to content

Deal Defuses ‘Nuclear Option’ in Senate (Updated)

Updated 4:44 p.m. | Senators led by John McCain and Majority Leader Harry Reid have defused the “nuclear option” that would have eliminated filibusters of executive nominations.

“We have a new start for this body. … I don’t know how I could be happier,” Reid told reporters Tuesday afternoon.

Senate Minority Leader Mitch McConnell, R-Ky., also blessed the deal as a good outcome for both sides that importantly avoided the nuclear option. “We feel good about that. I think they feel good about it,” he said. He pronounced Monday night’s unusual senators-only listening session “critical” to getting an agreement.

Under the deal, McCain and other Republicans agreed to confirm two National Labor Relations Board replacements offered by the White House, presumably favorites of the labor movement. A senior administration official said President Barack Obama will nominate Nancy Schiffer and Kent Hirozawa, two labor lawyers. In addition, the replacement for Richard F. Griffin Jr., whose term would expire next year, would effectively be immunized from a filibuster at that point.

The end result could be a big win for Democrats: a NLRB at least as liberal as it would have been had the two contested recess appointees been confirmed. But Republicans were able to claim two scalps and preserve their right to filibuster, although Reid said he “damn sure” didn’t give up the majority’s right to change the rules if Republican obstruction blocks future nominees.

Minority Whip John Cornyn noted that Republicans have long pushed for replacements for Griffin and Sharon Block.

“I’m glad that six months after Sen. McConnell asked the White House to withdraw these two controversial NLRB nominees who were unconstitutionally appointed, that they’ve decided — the White House decided to take the nuclear trigger out of Senator Reid’s hand and to withdraw these nominees,” the Texas Republican said.

It’s up to the White House to get nominees vetted and sent to the Senate before the current terms expire, though as Sen. Lamar Alexander, R-Tenn., told reporters Monday night, 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.”

In a sign of how quickly things are moving, Senate Health, Education, Labor and Pensions Chairman Tom Harkin, D-Iowa, has already scheduled a July 23 nomination hearing for the new nominees.

Reid said he would move to vitiate the cloture votes currently scheduled on Democratic nominees to the NLRB and move the three Democrats and two Republicans together once the committee process is completed on the replacements. McConnell said that would come before August recess.

McCain said the agreement would only defuse the current crisis, and would not apply to future nominees beyond the NLRB. But he stressed that it would help to create goodwill. McCain and other senators also credited Monday night’s three-and-a-half-hour long bipartisan caucus meeting with helping to lay the groundwork for the deal that emerged Tuesday morning.

“There is not an agreement for anyone in the future because you don’t know who’s going to be nominated,” McCain said. “But it does create an environment of goodwill. It does create some more impetus, following up with the immigration deal, that perhaps we can work more closely together in the future.

“The spirit of the deal is important because we know that we want to avoid this kind of confrontation and near death experience in the future,” McCain continued.

He said the 2005 “gang of 14” agreement “calmed the waters” back then and this deal will have the same effect.

But McCain admitted that despite an agreement, there will likely be future fights ahead.

“I’m not saying it’s a panacea, but I am saying it would contribute to some momentum to working more together as a body for the good of country, McCain said.

As the deal began to take shape, enough Republicans voted to end a filibuster of Richard Cordray’s nomination to lead the Consumer Financial Protection Bureau in a test vote, 71-29, two years after he was nominated for the post.

McCain has been in discussions with GOP Sens. Kelly Ayotte of New Hampshire, Lindsey Graham of South Carolina, Susan Collins of Maine, Bob Corker of Tennessee, John Hoeven of North Dakota, and Alexander, as well as Sen. Charles E. Schumer of New York, the No. 3 Democrat.

McCain worked the room in the Senate chamber Tuesday morning as some senators gathered for the swearing-in of Edward J. Markey to be the new Democratic senator from Massachusetts. He could be seen speaking to key leaders including Reid, Schumer and McConnell. Separately, McConnell conferred at some length with Vice President Joseph R. Biden, Jr., who was on hand for the Markey’s swearing-in. Reid also indicated that he was speaking with Biden.

The NLRB nominees had been the last sticking point. Obama angered Republicans when he used his recess appointment powers to seat several new members on the labor board, but those recess picks have been invalidated by some federal courts. Regardless of whether the nominees are replaced, Democrats demanded a commitment for confirmation irrespective of who is picked.

McConnell did offer to give up on filibustering all the nominees if Democrats took the nuclear option off the table, according to sources. But Reid declined, citing the possibility on obstruction on future nominees, such as a replacement for Homeland Security Secretary Janet Napolitano, who is leaving the administration.

Democrats say they are reluctant to take any procedural weapon off the table for fear of ending up back in gridlock on nominations. Reid had warned Monday morning that he would accept no deal that didn’t include confirmation for all seven executive branch posts.

Sen. Jeff Merkley, D-Ore., one of the leading advocates of making broad changes to the Senate’s rules, said following Tuesday’s Democratic caucus lunch  that the “nuclear option” remains very much available.

“My goal has always been to restore the norms and traditions of the Senate, in which filibusters are rare, and up-or-down votes are given to nearly every executive nomination. Hopefully today’s agreement will mark a return to that historic role,” said Merkley. “However, if the minority party decides to continue to engage in a systematic obstruction strategy, we will yet again need to revisit the rules discussion.”

Recent Stories

McCarthy promises ‘punishment’ over Bowman fire alarm before vote

Shutdown averted as Biden signs seven-week spending bill

Stopgap funding bills hung up in both chambers

Who are the House Republicans who opposed the stopgap budget bill?

Taking it to the limit — Congressional Hits and Misses

Feinstein broke glass ceilings during decades of Judiciary Committee work