Senate Democrats say they have the 51 votes necessary to change Senate rules Tuesday, enabling President Obama to fill three vacancies on the National Labor Relations Board, thus allowing him to avoid an embarrassing Supreme Court loss next year.
“The power of an extreme minority now threatens the very integrity of this institution,” Senate Majority Leader Harry Reid said at a Center for American Progress event about his proposed Senate rule change Monday. “My efforts are directed to save the Senate from becoming obsolete, to remain relevant and effective as an institution,” he continued. “To do that, the Senate must evolve to meet the challenges of modern-day America. This is really a moment in history when circumstances dictate the need for change.”
The real issue
For all the talk of “extreme” minorities and Senate obsolescence, there actually is plenty of consensus on most of the issues at hand. Reid has scheduled votes on seven nominees for Tuesday morning, but Republicans say Reid already has enough votes to confirm four of them (Labor Secretary nominee Thomas Perez, EPA Administrator nominee Gina McCarthy, Consumer Financial Protection Board Director nominee Richard Cordray, and Export-Import Bank President nominee Fred Hochberg), without changing Senate rules.
Republicans are only objecting to the nominations of three NLRB members and not because any of them are unqualified. If Obama is allowed to fill the NLRB vacancies, then the NLRB would have a quorum, and they would then be able to rewrite much of U.S. labor law.
Earlier this year, the U.S. Court of Appeals for the D.C. Circuit held in NLRB v. Noel Canning, that Obama overstepped his authority as president when he unilaterally declared Congress in recess in January 2012 and then recess-appointed three members to the NLRB. If Obama gets his current NLRB nominees confirmed, the NLRB could reissue the underlying regulation at stake in Noel Canning, rendering the case moot, ending the litigation all together.
A triple win for Obama
If the Senate votes to end the filibuster for executive nominees to independent agencies today, not only will progressive Democrats be free to rewrite business-labor relations in this country, but Obama will also avoid an embarrassing loss in the Supreme Court, and preserve his power to make recess appointments.
The showdown is scheduled for 10 AM today.
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