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Senator Mitch McConnell on the Senate filibuster reform rules and the D.C. Circuit Court decision today

Saturday, January 26, 2013
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EM: On the line with me right now, Senator Minority Leader, Mitch McConnell, Republican from Kentucky. Welcome to the show, sir.

MM: Hey, Ed, glad to be with you.

EM: It is a pleasure to speak with you today. Lots of interesting things going on today in Washington, D.C., and yesterday.

MM: Big day, big day.

EM: Two stories, big day. Two stories, and they’re not quite related, but they interact with each other, I think, in a very interesting way. Senator McConnell, first off, let’s talk about the filibuster reform that went through yesterday. And this is something that’s been talked about for weeks. And in the end, it turned out to be not much of a big deal, I think.

MM: No, a couple of cosmetic changes that had to be made, frankly, because there are 55 Democratic senators. And had they chosen to change the rules of the Senate with 51, which is a violation of Senate rules, they would have been able to get away with it. So I think it was a resolution to a growing controversy, really sparked, frankly, by the majority leader’s continued insistence that we not, that the minority not get any amendments, which has not been the way the Senate’s been operating in the past. And I think it prevented a meltdown, and Senate Republicans came out just fine. The 60 vote threshold is still in place as it has been for a very long time in this country. The requirement to get to 60 votes for the most controversial things has saved this country from a whole lot of very bad legislation, and that’s still firmly in place.

EM: The no-talking filibuster, no scaled down filibuster, no step down…

MM: No.

EM: Things that have been floated, and personally, I’m disappointed, because I really did want to hear Senator Rand Paul read out the entire Washington, D.C. phone directory.

MM: But the problem is the so-called talking filibuster would have led to 51 vote clearing the Senate.

EM: Exactly.

MM: So I mean, the Senate as we know it, the one legislative body in the world where a majority is not enough is still intact.

EM: And it comes at an interesting time because of the ruling today from the D.C. Circuit Court of Appeals.

MM: Yeah, this is really huge. The President, it sounds a little bit down in the weeds for your listeners, but the President is, under the Constitution, allowed to do recess appointments when the Senate is not in session. But the Senate itself has always decided when it was or wasn’t in session.

EM: Right.

MM: And at the beginning of 2012, the President exercised a couple of recess appointments, one to the NLRB, and another to this new all-powerful agency created under Dodd-Frank, the Consumer Protection Board. And we were still in session. He just did it, brazenly. There was a lawsuit that arose out of the state of Washington on the NLRB appointment. Senate Republicans joined the lawsuit not as a party, but as what’s called friend of the court. We hired Miguel Estrada, who many people may remember from the early 00’s was nominated by President Bush to be on the D.C. Circuit and his nomination was killed.

EM: Indeed.

MM: We thought it was great irony to hire Miguel to handle the case for us. We won, and basically what the court held is that the President doesn’t get to decide when we’re in session. If the President could decide that, he could decide overnight if we went home to go to sleep we were out of session and he could make an appointment. Or he might decide, you know, if the Senate is taking a lunch break, he could do it. Now this reins in this unconstitutional step by the President. It was unanimous. It probably will go the Supreme Court. We’re hopeful that the Supreme Court will uphold it. We don’t have an imperial presidency in this country, and this pretty well firmly establishes that the Senate’s role in advising and consent, confirming if you will, nominations is still firmly intact.

EM: And Senator, it actually goes farther than I think everybody thought it might.

MM: Yeah, it did.

EM: Now this has been something that presidents and the Senate have been dancing around for about sixty-something years, going back to about 1947, about what is a session and what isn’t. There’s been recess appointments, a lot of recess appointments made that would have been made illegitimate by this court ruling, because this court ruling is saying not only can you not make recess appointments unless the Senate is in formal recess, but you can’t make recess appointments for openings that didn’t open up when the Senate was in formal recess. You can’t just say that the opening…

MM: That’s a very, very broad decision. It would have been a significant decision even if it were a little bit less broad, but it’s a very broad decision, and the practical implications of this, just for the two agencies that I mentioned, the NLRB, the National Labor Relations Board, and the CFPB, the Consumer Financial Protection Board, could well mean, likely will mean that any action they took this year is inoperative, ineffective, null and void.

EM: It certainly is in relation to this one particular plaintiff. The order is, the NLRB order, or rule that they made, has been made void by the Appeals Court. Of course, the NLRB has already announced that they’re just going to proceed business as usual and file an appeal to the Supreme Court, which surprises nobody. But this basically says, Senator McConnell, there won’t be any recess appointments in the future, unless under extraordinary circumstances. There will be none. You won’t be able to qualify for a recess appointment in almost every condition.

MM: Well, we’ll see how broad the Supreme Court holding is, but even if it’s a more narrow holding, it’s still very significant, because by any objective standard, these appointments were made while the Senate and House considered themselves still in session. In other words, the point is the President does not get to decide when we are not in session. We get to decide that. If he could decide that, he could decide when we went home to go to sleep we were out of session, and he could make an appointment. So I think even if the Supreme Court upholds in a slightly more narrow way, if it upholds, I think it is a rebalancing of power, and a real slap in the face to the imperial presidency that this President has been trying to establish.

EM: Senator McConnell, I have to ask, because I think this is a fascinating what if. The filibuster deal was I think pretty much formed on Wednesday night into Thursday morning. The Senate voted it in overwhelmingly yesterday. I think it was 78 votes on one part of it, and 80-something votes on the other part of it, so large bipartisan majority in fixing this deal. Had this ruling come down on Wednesday, do you think that filibuster deal would have gone through?

MM: Yeah, I think so. I think it would have been viewed by members of the Senate as a separate issue, and an internal Senate issue where the issue that was being litigated was a dispute between the Senate and the presidency, two different branches of government. So think it probably would not have had an impact on our internal deliberations on our own rules. Both of these results are positive from a conservative point of view, both what we did internally with regard to our rules, and what the courts have, you know, frequently, courts are reluctant to referee disputes between branches of government.

EM: Right.

MM: Boy, this court didn’t have any reluctance at all. And for those who have been, you know, who thought Dodd-Frank was a mistake, you know, there’s a good chance that people all over America will be going to court, that the regulations that have been issued by the director of the CFPB will be considered invalid decisions by the National Labor Relations Board, which has been a runaway board anyway, their decisions this year will probably be considered invalid. This is hugely, hugely significant.

EM: Are you going to get some sort of a sense of the Senate to try to get the NLRB to acknowledge this? Because again, they’re saying that they’re that they’re just going to do business as usual, with the exception of this one rule with this one plaintiff. They’re going to basically ignore what the court is saying until the Supreme Court rules on it.

MM: Yeah, no, I don’t think there’s anything frankly you can do about that. Of course, the brief that we filed, that Miguel Estrada wrote for us, had no Democrats on it. So the Democrats in the Senate were not interested in defending the institution. It was only Senate Republicans who were interested in defending the prerogatives of the institution. So I doubt if we could pass anything here in the Senate with a Democratic majority that would impact this one way or the other. It is an important decision. I’d be surprised, frankly, if the Supreme Court didn’t take it.

EM: And quickly.

MM: And I’m hopeful that if they take it, they’ll basically confirm it. And that will mean it’ll be law everywhere, not just in these cases that were currently being litigated.

EM: Thank you, Senator McConnell. Mitch McConnell has been my guest. This is Ed Morrissey filling in for Hugh Hewitt on the Hugh Hewitt show.

End of interview.

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