Nuclear Crisis Averted, Senate Begins Clearing Obama Nominees

After reaching a deal to move beyond a fight over filibusters Tuesday, the Senate is poised to take the rest of the week to clear a handful of long-delayed executive-branch nominations, including Thomas Perez as Labor secretary and Gina McCarthy as Environmental Protection Agency administrator.

On a day that had a conciliatory tone, Senate leaders in both parties came to an agreement that extinguished—for now—a heated debate over whether Democrats would change the chamber’s rules to allow executive nominations to move on a simple-majority vote.

The deal permitted Richard Cordray to be approved as head of the Consumer Financial Protection Bureau in a 66-34 vote, after clearing a 71-29 cloture vote earlier in the day. Fred Hochberg, the president’s pick to lead the Export-Import Bank, is scheduled for a cloture vote Wednesday morning and could clear the Senate later in the day. Perez and McCarthy are also expected to clear the Senate this week, according to Democratic and Republican leadership aides.

The agreement also provided that the White House withdraw the names of Sharon Block and Richard Griffin as nominees for the National Labor Relations Board. In exchange, Republicans agreed not to block two new NLRB nominees. President Obama is expected to nominate AFL-CIO counsel Nancy Schiffer and NLRB counsel Kent Hirozawa.

In the end, the compromise over the “nuclear option” came down to Sens. Chuck Schumer, D-N.Y., and John McCain, R-Ariz. The veteran deal-makers spent the past five days negotiating a truce to end a showdown that took Senate tradition to the brink of radical change.

It was hard work. The pair brought proposed deals to their fellow lawmakers at least 10 times before getting one that would stick, McCain said.

That final agreement, forged Tuesday morning, assured seven of Obama’s executive nominees up-or-down votes—and keeps Majority Leader Harry Reid from exercising the nuclear option to force nominees through the Senate.

The key to the deal was that Schumer and McCain were able to convince the White House to withdraw the two NLRB nominees—whom Obama appointed during a Senate recess in a move that two courts have ruled unconstitutional—and put forward two new nominees. In exchange, the GOP stepped out of the way, and the Senate sent Cordray to the Consumer Financial Protection Bureau.

“The turning point was last night’s caucus, where everybody saw that we weren’t that far apart,” Schumer said, referring to a rare, closed-door meeting that involved 98 senators on Monday night.

But in the shadow of the post-deal glow, defeat lurked for Republicans. Senate Minority Leader Mitch McConnell and 42 other Republicans had pledged in a letter to Obama to block Cordray’s nomination until Democrats agreed to restructure the bureau he was picked to lead. On Tuesday, 17 Republicans—13 of whom had signed that letter—voted with Democrats to advance Cordray’s nomination, stripping the GOP of its leverage over the CFPB.

Twelve Republicans voted to confirm Cordray, whose nomination had been pending since 2011. He had been serving as de facto head of the agency since 2012 when Obama gave him a recess appointment.

Republicans said that in conversations with Reid, the White House, and Cordray himself, they were able to extract concessions. “Mr. Cordray said he would be willing to brief the Appropriations Committee. He said he would agree to an inspector general, and he agreed on a couple of other things too,” McCain said.

The deal came after dozens of phone calls among lawmakers, led by Schumer and McCain, who talked throughout the weekend. Schumer even continued negotiating while bike riding on Martha’s Vineyard. After Monday night’s marathon meeting, the two continued the calls, with Schumer even stepping out of a leadership meeting with Reid and Sens. Dick Durbin, D-Ill., and Patty Murray, D-Wash., to talk.

Sens. Bob Corker, R-Tenn., and John Hoeven, R-N.D., who helped earn conservative support for the immigration-reform bill with an amendment at the last minute, were also involved in working out the deal, McConnell said.

“Senators actually had to listen to each other,” McConnell told reporters. “I think the arguments that were made by my members obviously swayed at least some on the other side that maybe there was a solution to this, short of pulling the nuclear trigger.”

The GOP did score one victory in forcing the president to pick new NLRB nominees.

“Republicans aren’t going to allow any president to thumb its nose at the Senate with such a blatant, unconstitutional appointment, so we have to have a way to express our opposition to that,” said Sen. Lamar Alexander, R-Tenn. “We understand that the Democrats won the election and should be able to appoint members of the National Labor Relations Board. Send us two new members, and we’ll confirm them.”

Democrats had to trade in Obama’s NLRB nominees, whom they have spent months defending, for another set of Democratic nominees. And both sides retained leverage for the next fight. Republicans can still block nominees and Democrats can, once again, threaten to unleash the nuclear option, making a future showdown possible, if not likely.

McCain joked that his conversations with Schumer seemed “ad nauseam. You know, I can’t stand the guy, and so here I have to talk to him all the time. We went to the ‘Gang of Eight,’ there’s months of meetings. You know, he’s really an unpleasant person.”

But the end result was pleasant enough, for both sides.

Reid said, “I don’t know how I could be happier.”

This article appears in the July 17, 2013, edition of National Journal Daily as Nuclear Crisis Averted; Here’s What’s Next.