Sen. Harry Reid’s threat to amend the Senate rules to end the veto exercised by the Republican minority over presidential appointments was a very good step. Republican use of the rule that a majority in the Senate is 60 out of 100, not 51, was not motivated by the desire to block unsuitable appointees. It was instead a means of nullifying legislation that they opposed but did not have the votes to repeal.

In 2010, we enacted, over Republican objections, an independent agency to protect consumers of financial products. Under our Constitution, the appropriate means to weaken the Consumer Financial Protection Bureau — the Republican goal — would have been to pass a bill. Since they did not have the votes to do this, they used their 44 votes to block the confirmation of Richard Cordray to head the bureau. Cordray is highly regarded even by Republicans, but until he was confirmed the CFPB could not exercise its full power.

Similarly, spurred by business opposition to the right of men and women to bargain collectively, the Republicans also refused to allow a vote on confirmation of members of the National Labor Relations Board, keeping it from working.

The constitutional provision that the Senate “shall advise and consent” does not mean that it has to say yes; it does mean that senators are supposed to vote on the merits of the appointee and not use the Senate rules as a way to negate legislation that they lack the votes or the popular support to repeal.

Thanks to Sen. Reid’s initiative, these agencies can now function.

That’s good. But we deserve better. There remain important appointments that may still be filibustered.

The Republicans have for the last three years been using their veto to block confirmation of the president’s appointees to vacancies in the judicial circuit for the District of Columbia. Today, that pool of judges is heavily weighted toward Republicans. President Obama’s nominees to fill three vacancies would create not a Democratic imbalance but a more even distribution. This court has been one of the serious obstacles to timely implementation of the Financial Reform Bill (a bill I sponsored that is often called Dodd-Frank in the media).

The court vetoed a Securities and Exchange Commission rule to limit the barriers corporations may erect to keep shareholders from nominating candidates for boards of directors.

One conservative judge defied the explicit mandate of our bill and threw out a ruling of the Commodity Futures Trading Commission restricting speculation on oil. They have done this not on constitutional grounds, but by criticizing the agencies for not having done enough analysis of the thousands of pages of comments submitted by the financial industry seeking to block them. This heavy burden combined with the Republican House’s refusal to provide the funding they need has been a major reason that rules have not been adopted quickly.

The principle that Sen. Reid invoked to get confirmations does not extend to the appointment of judges. But it should. Electing a president but not allowing him to appoint judges frustrates the Constitution.

This principle is not only important in democratic theory. The tight grip the extremist tea party has on the Republican Party is one major cause of gridlock. The Senate filibuster is the other.

Some liberals say that we should not let the U.S. Senate be governed by majority rule because at some point conservatives might pass legislation we don’t like. That’s called democracy. Enacting barriers to any action whatsoever on the principle that you might someday see action that you dislike is a perfect recipe for gridlock.

Other defenders say it protects the residents of smaller states from majority tyranny. But the two-senators-per-state rule is already a very powerful dilution of the majority principle. Finally, we are told that this is an important means of protecting minorities in general from majority tyranny, but in American history there is no example of a vulnerable minority being protected by the filibuster. To the contrary, its main historic use was to prevent the U.S. government from ensuring that the principles of our Constitution were extended to black people in the South.

Sen. Reid deserves great credit for making sure that the NLRB and the CFPB can function. Now his task is to make sure that the rest of the government can do so as well.

Sen. Mitch McConnell, R-Ky., complained that without filibusters the Senate will never be the same. He is in a very small minority who think that would be a bad thing.

Barney Frank is a retired congressman and author of landmark legislation. He divides his time between Maine and Massachusetts. You can follow him on Twitter:



Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.