Nuclear option 'poisons the atmosphere' -- but does it kill the last strains of bipartisanship?

Frustrated Senate Democrats' new limits on the filibuster ensure one group of beneficiaries -- presidential nominees -- but also could further hobble the already-slow progress of bipartisan energy legislation through the polarized Congress, lawmakers warned yesterday.

Majority Leader Harry Reid's (D-Nev.) use of the so-called nuclear option, a rules change curbing filibusters of all nominees save for Supreme Court justices, plunged the tradition-bound upper chamber into an uncertain era even as the Capitol emptied for a Thanksgiving recess. Republicans appeared to follow Minority Leader Mitch McConnell's (R-Ky.) lead in not "talking about reprisal," but few saw a smooth path forward.

"I truly believe he has made a terrible mistake, contrary to not only the long-standing goals of the Senate but the traditions of respecting minority rights," Sen. Susan Collins (R-Maine), one of few swing GOP votes remaining for Reid's party to court, said of the majority leader in an interview.

Collins said she hoped the rules change would not hurt the Senate's ability to advance bipartisan bills such as the long-stalled energy efficiency plan authored by Sens. Jeanne Shaheen (D-N.H.) and Rob Portman (R-Ohio). "But I fear it may," she added, "because it poisons the atmosphere."

Sen. John Hoeven (R-N.D.), a conservative who engages with Democrats, offered a more optimistic view. The chamber "has got to find a way to get bipartisan action," he said in an interview, and vehicles such as the Shaheen-Portman energy bill as well as bicameral conference deals on a new farm bill and a water resources authorization bill could prove crucial.


"These are opportunities to come back to some bipartisanship," Hoeven said.

Even before Reid proposed the rules change, which passed yesterday with the support of all but three Democrats and no GOP votes, the efficiency bill's chances of moving forward in the near term appeared dim absent additions to win more Republican votes (E&E Daily, Oct. 28).

While the new filibuster limits do not affect legislation, some in the GOP aired apprehension that Democrats soon would expand the power from nominees to any business that comes before the chamber.

"Just wait -- maybe they'll throw another bomb and it won't just be nominees," one GOP aide said, speaking candidly on condition of anonymity. "We're now the House."

Two Republicans who in the past have staked a reputation on deal-making and working across the aisle drew similar dismayed comparisons between the Senate and the House, where the minority has fewer parliamentary tools at its disposal.

A visibly irritated Sen. John McCain (R-Ariz.) said the take-away from yesterday was that the Senate was now under "simple majority rule."

And Sen. Lindsey Graham (R-S.C.), who worked with Democrats on a failed 2010 climate bill, said the new rules would increase polarization and "make it harder for the institution to operate." He invoked the maxim, popularly attributed to George Washington, that casts the Senate as a "cooling saucer" that allows for more reasoned debate.

"That's been broken," Graham said.

"I just think of the nutty ideas of ours that they stopped and I think of the nutty ideas they had that we stopped," he added. "This really makes the Senate much more like the House, and the partisan group influence on members is going to go through the roof."

Yucca fireworks

Among the most volatile squabbles given new life by the rules change is Yucca Mountain, the long-proposed nuclear waste repository in Reid's home state that the Obama administration scuttled in 2010.

Nevada's GOP junior senator, Dean Heller, lamented a "scary day" for his state if Reid or future leaders of the chamber expand the filibuster restriction from nominees to legislation.

Stopping "Yucca Mountain from moving forward, a policy that is already the law of the land," has required "using every arrow in our quiver," Heller said in a statement. "When you are from a small state, you have to rely on every tool in your toolbox to protect yourself."

Reid spokeswoman Kristen Orthman slammed the statement, echoed anew yesterday by top Department of Energy appropriator Lamar Alexander (R-Tenn.), as "disingenuous and not true" given that the majority leader "has already defunded and ended" Yucca.

"If Senator Heller is so concerned, maybe he should start convincing his Republican colleagues to not turn Nevada into the country's nuclear waste dumping ground," Orthman added via email.

Alexander and Heller played the Yucca card five months ago during a resurgence of speculation that Reid would go "nuclear" (E&E Daily, June 19).

The nominee factor

The first Obama administration appointee to see the upside of the rules change, Patricia Millett, saw cloture invoked in advance of her expected confirmation for a seat on the U.S. Court of Appeals for the District of Columbia Circuit late yesterday on a 55-38 vote. A Republican blockade of Millett and two other nominees for the powerful D.C. Circuit, which evaluates challenges to many federal regulations, had driven Democrats to their long-considered "nuclear" brink (Greenwire, Nov. 21).

Not long after the Millett vote, the White House announced a new nominee to be chief financial officer at NASA. That post's current occupant, Elizabeth Robinson, found her ascension to an Energy undersecretary position blocked by a hold from Sen. David Vitter (R-La.) last month (E&E Daily, Oct. 22).

Ostensibly, Robinson's DOE nomination can now proceed without the threat of a filibuster.

It was, in part, obstruction of U.S. EPA nominees that helped grease the wheel for the swift turnaround. Administrator Gina McCarthy was one of the nominees at the center of a weeklong battle in July that brought the Senate to the brink of changing the rules.

A full meeting in the Old Senate Chamber and a deal that sent back two National Labor Relations Board nominees averted the nuclear option that time but also began to turn some longtime Democratic opponents.

Environment and Public Works Chairwoman Barbara Boxer (D-Calif.), who previously had opposed filibuster reform, said the 136-day delay in McCarthy's nomination was one of the factors that led her to change her mind. Also a factor, she told reporters, was the years-long holdup for Ken Kopocis, nominated in 2011 to head EPA's water office.

"Justice delayed is justice denied," Boxer said. "We have one nominee who would be in charge of clean water and everyone says they think he's great and terrific, but they won't let him have a vote."

Kopocis, who has been serving EPA in an advisory capacity, cleared the EPW panel in July but has not been confirmed by the full Senate. It's expected that his nomination could move more swiftly under the new rules, despite Republican concerns about how the Obama administration is dealing with Clean Water Act issues.

Janet McCabe, who is acting as EPA's air chief and is widely expected to be named for the permanent post, could also see a nomination soon.

Bright spots?

Progress at the Senate Energy and Natural Resources Committee, where Chairman Ron Wyden (D-Ore.) and ranking member Lisa Murkowski (R-Alaska) have cleared 70 bills -- though only 11 have been signed into law -- is unlikely to slow, Murkowski spokesman Robert Dillon said in an interview.

Elsewhere on the Energy panel, one Democrat whose electoral peril and affinity for her home-state oil industry had vexed environmentalists yesterday sounded emboldened by the rules change.

Republicans "who think they own this floor" brought the filibuster limits on themselves, Sen. Mary Landrieu of Louisiana said in an interview. "The reason I voted for this is that I want to get back to fixing flood insurance" as well as approving the Keystone XL pipeline, she added.

Another oil-patch Democrat whom Republicans are targeting in 2014, Sen. Mark Begich of Alaska, predicted that "there will be a moment where everyone will get over it." As for Republicans' doomsday warnings, he added, "they say that today."

Even before senators left the building, in fact, proof emerged that they could still set aside partisan differences and agree on some things: Sens. Tom Carper (D-Del.) and John Boozman (R-Ark.) joined members of the Senate Recycling Caucus on a joint resolution endorsing the reuse of waste.

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