The Republican boycott of a committee vote on Gina McCarthy's nomination to head U.S. EPA yesterday has left committee Democrats fuming about what they say is a too-empowered minority.
With confirmation of the agency's air chief to replace Lisa Jackson suddenly in question, that frustration has led to renewed calls to change Senate rules to prevent obstruction that they say has gone on for too long. Even as Democrats work to find a solution to the immediate nomination block, some say they've got an eye on the future.
As Democrats testily ran through statements at yesterday's meeting that was supposed to be for the McCarthy vote, Sen. Bernie Sanders (I-Vt.) said it was time "to do what the American people want, and that is to have a majority rule."
"When I was a kid in elementary school, we used to elect class presidents, and we were told that the majority rules," Sanders said. "This type of obstructionism is enormously anti-democratic. If we do not exercise majority rule, we are more to blame then they are."
And Sen. Sheldon Whitehouse (D-R.I.) said later that a "pattern of abuse" by the minority party meant it was time to ease the process, especially for Cabinet-level nominees.
Those calls may only grow as McCarthy's nomination reaches the Senate floor, where a hold by Sen. Roy Blunt (R-Mo.) means Democrats will need 60 votes to get her confirmed, unusual for a Cabinet nominee. Sanders expressed some concern yesterday about whether Democrats could muster the necessary votes.
Chairwoman Barbara Boxer (D-Calif.) said the committee is working to vote on McCarthy as soon as possible. The panel can vote with 10 Democrats present, but no markup has been announced.
A spokesman for ranking member David Vitter (R-La.), who led the boycott, yesterday said there had been no further discussions with the majority. Vitter said at a press conference yesterday that there could be movement if EPA responds to a series of five transparency requests that Republicans say would provide the public with more information about the assumptions that underlie its regulations (Greenwire, May 9).
"We're not asking or expecting the president or his administration to change their bedrock views," he said. "But I believe the way we move forward as a country and brave these huge divides we have on some policies like [climate change] in the case of EPA policy is to get back to what the EPA was founded on originally ... which is basing decisions and regulations on good, sound science."
In the short term, Democrats say they are doing what they can to speed the process. Sen. Tom Carper (D-Del.) said he planned to use his relationships with committee Republicans to try to facilitate a cease-fire.
"What I'm going to do is to go sit in their offices over the next week and say, 'What is really the concern?'" Carper said.
McCarthy has already answered more than 1,000 questions put to her by Republicans, he said. If there are a few questions that Republicans feel they need to have answers to before the vote, Carper said, he wants to help them get those answers.
There is some disagreement about whether Democrats can move McCarthy's nomination even if all 10 majority members are present and vote in favor. In his letter yesterday to Boxer, Vitter cited a rule that required two members of the minority party to be present in order for the committee "to take action."
But Boxer and majority staff have said that under committee and Senate rules, they can move the nomination with all 10 majority members present. That would require that Sen. Frank Lautenberg (D-N.J.), who has been ill in his home state, appear. A spokesman said Lautenberg would show up for the vote if it is scheduled.
Sen. Ben Cardin (D-Md.) said panel Democrats are preparing to vote on McCarthy with or without any Republicans present.
"We can have a straight party-line vote; we just have to have everybody there," he told reporters at the Capitol. "And I think we're making arrangements to do that so that there won't be any further delays like today."
What those "arrangements" look like remains to be seen.
Rules changes eyed
The McCarthy blockade, as well as an earlier move by Republicans on the Health, Education, Labor and Pensions Committee to block a vote on Labor Secretary nominee Tom Perez, has Democrats saying more changes are needed to favor the victors in elections.
The Senate did reach an agreement in January to amend some filibuster rules to make it harder for a single senator to slow legislation and agreed to work to move judicial nominees more swiftly.
But, Whitehouse said, a recent Republican filibuster of the nomination of Caitlin Halligan to the U.S. Court of Appeals for the District of Columbia Circuit shows that Republicans "break the rules with no consequences."
"To me, that makes an opening for us to force a 51-vote confirmation," Whitehouse said. "But then stop, don't do it forever like they did."
Sarah Binder, a senior fellow at the Brookings Institution who studies Congress, said there are a number of options to increase majority rule on the committee level. Democrats could remove a requirement that minority members be present to establish a quorum or amend proxy voting rules to allow for a majority without all members present.
Likewise, Democrats could pursue changes to floor rules that apply to all committees, such as the little-known rule used to block the Perez nomination that prevents committees from holding a meeting more than two hours after the Senate is gaveled in.
Ultimately, though, Binder said those options are "politically unlikely," especially because floor rule changes would require input from the minority party.
"Ultimately, all of this is a piece of the Senate not being a majority-driven institution," Binder said. "It doesn't have the rules that the House has. The minority has many ways of participating, and because it can participate, it can drag its feet."
And as Republicans have pointed out, Democrats are no strangers to using the very same rules on previous EPA nominees. In 2003, then-EPW Committee ranking member Jim Jeffords (I-Vt.) led a Democratic boycott on the panel to prevent a vote on EPA administrator nominee Michael Leavitt, saying that he had not fully answered their questions.
Jeffords appeared at the markup to express Democratic concerns. Then-Chairman James Inhofe (R-Okla.) -- one of the Republicans who boycotted McCarthy's markup -- delayed the vote by two weeks, after which time Leavitt cruised through the committee on a 16-2 vote.
Vitter and other Republicans told Boxer to follow that example, saying Inhofe "followed the rules ... and scheduled an official markup for two weeks later. We ask and expect that you do the same."
A Vitter aide said the senator did not attend the meeting yesterday as Jeffords had because of concerns that his presence could leave Democrats with a 10-member quorum and allow the vote to advance.
Democrats and environmentalists have also lashed out over what they say are mixed messages about the reasons for the blockade. McCarthy has enjoyed bipartisan support in the past and was confirmed overwhelmingly by the Senate for her current position in 2009.
Republicans have asked McCarthy to promise a series of changes at EPA that they say would provide the public with more information about the assumptions that underlie its regulations. Among these is the way the agency calculates the costs and benefits of rules, an equation Vitter and other Republicans have said underestimates cost and overestimates benefits.
But Whitehouse said that was just another way to take aim at EPA regulations, including for carbon.
"If you're asking them to rethink the way they do the cost-benefit assessments, that works right back into the same questions," he said.
And Daniel Weiss, director of climate strategy for the Center for American Progress, said the move was "more evidence that these senators are the handmaidens of the most extreme polluters who profit from inaction on climate change."
John Walke of the Natural Resources Defense Council slammed what he called a "self-concocted transparency bromide" used by Vitter and Republicans.
The transparency requests, he said, would do more to add red tape and delays than to shed light on the agency. For example, the cost-benefit analysis request, he said, is one favored by industry that would "cripple EPA through paralysis by analysis, adding layers of bureaucratic red tape and delay to a process that is not broken."
However, Americans for Limited Government general counsel Nathan Mehrens praised the Republican boycott, saying the Republicans should pursue a full filibuster on the Senate floor.
"Given Obama's State of the Union threat to continue to pursue unilateral executive actions in lieu of climate change legislation -- including regulating carbon dioxide and water as pollutants under the Clean Air and Water acts -- no nominee to the EPA should be confirmed until this rogue agency is reined in," Mehrens said.
Ultimately, Carper said, it boiled down to Republicans wanting to reshape EPA policy by holding up the nomination for administrator.
"Elections have consequences," he said. "President Obama was re-elected. He has, I think, the right to nominate his team. We have the obligation to vet them and to use some common sense, some fairness -- and to, in most cases, confirm those people."
He added, "We need somebody to run this agency."