No Deal, Despite Progress, After All-Senate Nuclear Option Meeting

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Drew Angerer / Getty Images

A Senate joint caucus meeting, on Capitol Hill, July 15, 2013 in Washington, DC.

The U.S. Senate huddled as a whole behind its old chamber doors Monday night, long after the nearby cafeterias had been shuttered, to debate without cameras or a public gallery for over three and a half hours the rule change proposal by Majority Leader Harry Reid to permit simple up-and-down majority votes on certain presidential nominations. The conversation created no immediate breakthrough on an impasse which threatens to upend Senate decorum, but for many senators leaving the room, the ice of historic partisanship began to thaw in the rare meeting.

“There’s hope in a hopeless world,” said Sen. Tom Carper, the Delaware Democrat, as he made his way out.

“No, there’s no deal, but there’s a much better understanding,” said Sen. Jay Rockefeller, a Democrat from West Virginia.

“It was cathartic for some,” said Sen. Jeff Flake, an Arizona Republican, who sat in between Democratic Sens. Joe Manchin of West Virginia and Ben Cardin of Maryland for the long discussion. “Everyone was respectful. It was a good discussion. Without cameras it’s a different environment, it really was.”

“It was certainly one of the high points in my time here,” said Sen. Angus King, the Maine Independent who caucuses with the Democrats. “Hearing people actually stand up and talk and make compelling arguments, and listen, and learn—it’s the way it ought to work.”

After the meeting Reid continued to meet with Minority Leader Mitch McConnell to hammer out a compromise, but Democrats said he was still prepared to act without Republican support. The issue is likely to come to a head on the Senate floor Tuesday morning.

Reid has threatened the “nuclear option” to change the Senate’s historic rules with a simple majority vote despite his misgivings while in the minority because Republicans have moved to block at least seven executive appointments: Gina McCarthy for the Environmental Protection Agency, Tom Perez for the Department of Labor, Fred Hochberg for the Export-Import Bank, Richard Cordray for the Consumer Financial Protection Bureau (CFPB) and three Democratic seats on the National Labor Relations Board (NLRB).

Sen. Roger Wicker, a Mississippi Republican, argued to TIME that Reid could have gotten the nominees if that’s all he wanted. “Republicans over the weekend thought we had a deal,” said Wicker. “The resolution would be that we reserve the right to executive nominations, but the President fills all of the seven slots that are in controversy now.”

Reid rejected that offer because McConnell refused to refrain from filibustering future presidential nominees, according to POLITICO. Wicker says that the primary concern now is the NLRB nominations, and that there is a “50-50 chance” that Reid will go nuclear. Richard Cordray, who 43 Republican Senators had sworn to oppose, will get confirmed “either way,” said Wicker.

Two of the NLRB nominees—Sharon Block and Richard Griffin—have waited 579 days for confirmation, according to the Huffington Post, and Cordray has waited 730 days to be confirmed. Senate Republicans have blocked Cordray’s confirmation not because of him necessarily—indeed they have written they would block any director—but because they would prefer the CFPB to be overseen by a board, and to be subject to the congressional appropriations process. Currently it is a beneficiary of the Federal Reserve, which operates independent of direct federal oversight.

Obama appointed Democrats Block and Griffin to the NLRB when Congress was out of session, a so-called “recess appointment” that was later ruled unconstitutional by a federal appeals court. The Supreme Court has agreed to hear arguments next term on the legality of recess appointments to the NLRB. The board will be run by two Republicans and one Democrat if Block and Griffin aren’t confirmed, or replaced by other Democrats.

“This is really a moment in history where circumstances dictate the need for change. Minor change, no big deal,” Reid said in a speech at the liberal Center for American Progress Monday morning. “Remember, all we want to do is what the Constitution says we should do. Filibusters are not part of the Constitution—that is something that senators developed on their own to get legislation to pass. Now it is being used not only to get legislation from stop passing, but to stop nominees. It’s in a totally different place than where it should be.” (For how Reid and McConnell have each used the Constitution to argue both sides of majority rule, read my colleague Michael Scherer’s article here.)

Sen. Lamar Alexander, a Tennessee Republican, said after the meeting that the NLRB issue is a “sticking point” because it is a “blatant unconstitutional act by the President.” The Monday meeting didn’t assuage his concerns, either. “I don’t feel very good about it, to tell you the truth. I’m glad we had the meeting, I appreciate it, but there are too many senators who don’t understand the danger of the precedent,” said Alexander. “Imagine what we Republicans would do in a year and half if we were in the majority. We would have a completely different agenda.”

Alexander was one of the few who emerged from the meeting Monday with a sour taste. Still, at the end of a long day, little concrete could be shown. When asked outside some elevator doors if he believed Reid had shown a different understanding, Arizona Republican John McCain said, “Yes.”

Then, as the doors were closing, he followed with a smile, “Sort of.”

UPDATE at 11:00 AM: Majority Leader Reid said on the Senate floor that he there were a “few I’s to dot and T’s to cross,” but he is “fairly confident” that there is a way forward. “I think everyone will be happy. It is a compromise. I think we get what we want, and they get what they want. Not a bad deal,” said Reid. He praised Sen. John McCain (R-Ariz.) in particular for his efforts. “No one was able to break through except him,” Reid said.