Conditions are developing for a Perfect Political Storm that may entrench gridlock in the lameduck session and easily spill over into the new Congress. The two principal elements of this storm are the President’s insistence he is ready to make immigration policy by Executive Order and insistence by the White House and some Senate Democrats to push confirmation of as many nominees as possible while Democrats still control the Senate. Republicans have already warned against these steps and are certain to be enraged by them.
Incoming Majority Leader Mitch McConnell and Senator John McCain have openly denounced plans to act on immigration policy without legislation. If the President proceeds anyway, Republicans have no choice but to respond. My colleague, Brian Smith, separately describes a scenario that could lead to immigration legislation narrower than the President has advocated. Such may happen eventually, but the initial Republican response will be decidedly negative. In this period, easily extending into next year, bipartisan consensus will be remote.
Already embittered by Leader Harry Reid’s exercise of the nuclear option, Republicans will consider a nominations flood in the lameduck salt in the wound. Their capacity to respond directly is constrained by the nuclear option itself, which kills the possibility of filibuster. As well, Republicans agreed in January 2013 to a rules amendment that limits post-cloture debate time. Cabinet-level nominees can be considered for up to 30 hours after cloture. Appellate judges get eight hours. District court judges have two hours. These rules changes, themselves negotiated under threat of the nuclear option, minimize the Republicans’ ability to slow things down.
The amendment was accompanied by a Reid-McConnell colloquy affirming no further adjustments would be made in this Congress except through the regular order. Then, a year ago, came the nuclear option. McConnell stated openly there had been a breach of faith. This perspective further colors a Republican response, if a “nomination factory” goes into high gear.
There are a handful of matters that must move in the lameduck or early next year because they are must-pass or because the Republicans also want them. But if it materializes, the Political Perfect Storm will end one Congress and start another on decidedly sour terms.