Democrats Plan Challenge to G.O.P.’s Filibuster Use

By JEREMY W. PETERS

July 8, 2013

WASHINGTON — In a move that could bring to a head six months of smoldering tensions over a Republican blockade of certain presidential nominees, Senate Democrats are preparing to force confirmation votes on a series of President Obama’s most contentious appointments as early as this week.

If Republicans object, Democrats plan to threaten to use the impasse to change the Senate rules that allow the minority party wide latitude to stymie action.

Through the filibuster and other delaying tactics, Republicans have slowed the confirmation process as the president tries to install the team that will carry him through his second term. But Democrats and their majority leader, Senator Harry Reid of Nevada, now say they have reached the point where they believe that the only way to break the logjam is to escalate the fight.

Senator Jeff Merkley, Democrat of Oregon, one of the most outspoken members of his party in calling for new limits on the filibuster, said, “They’ve essentially said they are going to disable the executive branch if a minority of the Senate disagrees with or dislikes the president the people elect.” He added, “It’s come into a realm where it’s just unacceptable because if the executive branch can’t function, then the nation can’t respond to the big challenges it faces.”

Senator Mitch McConnell of Kentucky, the Republican leader, is so alarmed by the threat of a filibuster rule change that he has gone on the Senate floor nearly every day the chamber is in session for the last month to warn of the consequences.

“Majorities are fleeting, but changes to the rules are not,” Mr. McConnell said recently. “And breaking the rules to change the rules would fundamentally change this Senate.”

Mr. Reid has held off on forcing the issue until now, worried that a fight over the filibuster would disrupt the delicate negotiations over immigration legislation. It is also uncertain whether at least 51 Democrats would go along with a rules revision given how cautiously senators weigh even the slightest change to how their body functions.

But with the Senate now clear of the immigration debate, having passed a comprehensive bill before its July 4 recess, Democratic leaders have said they see no reason to wait any longer.

Their plans represent a shift in strategy. Instead of picking fights over judges nominated by the president, where much of the tension has arisen this year, Democrats are likely to focus only on agency appointees. For example, they would line up a series of votes on nominees to run the Environmental Protection Agency, the Consumer Financial Protection Bureau, the Labor Department and a politically important labor oversight board.

The rule change they would seek is intended to be limited. It would allow senators to continue to filibuster legislation and judges, but not appointments to federal agencies or cabinet posts.

Democrats believe that their argument — that a president has the right to assemble his own team of like-minded cabinet officials and other high-level policy makers — is more persuasive in the court of public opinion. They also believe that this fight could have fewer consequences for them should their political fortunes reverse and they find themselves in the minority trying to block judicial nominees from a Republican White House.

Democrats are still strategizing over how best to proceed, but the nominees they have talked about putting forward first are those for vacant seats on the National Labor Relations Board, the government entity that has become a major source of contention in the fight over confirmations between the White House and Senate Republicans.

The others are also divisive: Richard Cordray as director of the Consumer Financial Protection Bureau, Thomas E. Perez as secretary of labor and Gina McCarthy as director of the E.P.A.

“What’s particularly galling to us is there are certain vacancies that haven’t been filled not because the Republicans have anything against the nominee,” said Senator Charles E. Schumer of New York, the No. 3 Senate Democrat. “But rather because they just dislike the agencies and they don’t want them to function.”

Republicans contend that Mr. Obama has been too heavy-handed in making some of his appointments, which have drawn scrutiny by the courts. Mr. Cordray and three of the five National Labor Relations Board nominees are, in fact, already serving because the president installed them using a backdoor maneuver known as a recess appointment, allowing him to bypass the Senate. The Supreme Court has agreed to decide whether Mr. Obama violated the Constitution last year when he made the three labor board recess appointments. Mr. McConnell has called those appointments an “unprecedented power grab.”

Because of the doubt the courts have cast on the legitimacy of the labor board appointments, the legality of the board’s decisions in the year and a half since Mr. Obama went around the Senate and named them is in question. So to clear up any legal ambiguities, the president has asked the Senate to confirm all five members of the board, which rules on matters like disputed collective bargaining agreements.

The potential ramifications for both parties are significant. For Democrats, filling those positions will allow the Obama administration greater certainty in enforcing labor law. And it will satisfy their supporters in organized labor who are concerned about the legal limbo clouding the labor board’s decisions.

Republicans have refused to confirm the board’s nominees on the grounds that the president never should have appointed them in the first place.

But Republicans also see a broader battle they hope will force changes from other government bodies that they believe are deeply flawed.

In the case of the watchdog Consumer Financial Protection Bureau, which many Republicans voted against establishing as part of the 2010 Dodd-Frank Wall Street legislation, conservatives have called for an overhaul of its structure that would replace the single director with a bipartisan panel. Forty-three Republican senators have signed a letter saying they would refuse to confirm any nominee, regardless of political affiliation, as the bureau’s director.

In many ways the fight over nominees and the filibuster echoes battles in the mid-2000s when Republicans controlled the Senate and were threatening to limit the filibuster. In recent weeks, Mr. McConnell’s office has been sending around excerpts from comments made then by outraged Democrats.

“If they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse,” said one. The speaker? Senator Barack Obama, Democrat of Illinois.