Senate Democrats are following the lead of Big Labor too closely

The filibuster has a purpose

The filibuster prevents the majority from stifling debate over controversial proposals. The threat to filibuster can and historically has caused the two sides to work together to forge a compromise.  To be sure, the filibuster has been used for purely political purposes, as it was in 2003 when Senator Reid filibustered President George W. Bush’s judicial nominations.  But it has also been used for the principled purpose for which it was intended.

There is no crisis in the confirmation process

Contrary to the loose allegations of Big Labor and its surrogates, the president is getting the cabinet members he selected.  Although Senate Republicans asked tough questions of Chuck Hagel and Thomas Perez, they confirmed Hagel and the votes are there to confirm Perez.  As to judicial nominations, only three judges remain on the Senate’s Executive Calendar, compared to 30 at this same time in the presidency of George W. Bush. 

Why Republicans oppose two of the five NLRB nominees

Republicans are drawing a tight line around three judges nominated to pack the D. C. Circuit and a handful of nominees to independent Executive Branch agencies, such as the two NLRB nominees, Sharon Block and Richard Griffin, who are currently serving unprecedented recess appointments.

The president recess-appointed Block and Griffin in January 2011, even though the Senate was in continuous session every two or three days pursuant to a resolution that passed unanimously.  Only nine months earlier, his Solicitor General, Elena Kagan (now Justice Kagan), officially represented in communications with the Supreme Court that “the Senate may act to foreclose this option [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period of time.”

Republican opposition is the result of the president’s bold disregard for the Senate’s rules and his effort to eliminate the Senate from its role under the Constitution in the political appointment process.  

And no crisis looms at the NLRB

The mantra being heard that the NLRB will “go dark” if it loses its quorum next month is nonsense.  Unlike other Federal agencies, the General Counsel has independent prosecutorial discretion. The activities of the General Counsel—who hires most of the agency’s employees and commands most of the agency’s budget— such as prosecutions for unfair labor practices are largely uninterrupted by the lack of a quorum on the board.  Such prosecutions continue and up to 93 percent are settled.

Furthermore, last week, Senate Minority Leader Mitch McConnell proposed that the Senate confirm by unanimous consent three of the President’s five nominees to the board.  That would give the board five members, including a Senate-confirmed quorum.  This would allow the President ample time to name two new nominees acceptable to both sides; nevertheless, Senator Reid rejected the proposal.  

The Senate should consider the national interest—not the self-interest of Big Labor

Big Labor resembles a bull without peripheral vision: it moves ahead aggressively without considering the consequences.  It demanded unprecedented recess appointments to the NLRB and sweeping changes in board law, all of which are on the ropes in the circuit courts and have left the agency in shambles.

Its current demand is blind to the not-too-distant future when there will be a Republican Senate.  Without the filibuster, legislation loathed by Big Labor today can become law tomorrow—such as a National Right to Work Law and the Team Act.

While the results of such a dramatic change, ending the right to filibuster, are difficult to predict, two outcomes are certain: legislation will be hastily drafted and one-sided (think Obamacare), and controversial legislation will be targeted for repeal by the new party as soon as it takes control.  The resulting swings in the nation’s laws will be destabilizing, undermine the rule of law, sow cynicism and dissent.

Senate Democrats should step back and say “no.”

Schaumber is a former chairman of the National Labor Relations Board under president George W. Bush.