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McCain's 'hold' on DoD nominees isn't binding, experts say

Feb. 26, 2014 - 03:56PM   |  
HUNGARY-US-DIPLOMACY
U.S. Sen. John McCain isn't satisfied with answers from two Pentagon nominees. (AFP/Getty Images)
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WASHINGTON — U.S. Sen. John McCain says he wants to block two nominees for high-level Pentagon jobs — but the Senate’s “maverick” is about to find out a hold isn’t what it used to be.

Bob Work, President Obama’s pick to be deputy defense secretary, told the Arizona Republican during a Tuesday hearing the Navy’s Littoral Combat Ship program is on a “normal” track despite some problems. McCain was not impressed.

“I think this is very normal with Navy shipbuilding,” Work said when asked about Pentagon plans to only put 32 ships under contract rather than 52 LCS models.

“You think it’s normal?’ McCain shot back. “The cost overruns associated with this ship, the fact that we don’t even know what the mission is. ... You disagree with the Government Accountability Office [GAO] statement at the cost overruns? This is normal?”

Christine Wormuth, Obama’s pick for Pentagon policy chief, offered a nuanced answer to questioning by McCain and other Republican senators on whether they believe al-Qaida is growing in size and threat potential to the United States. McCain was not impressed.

He told Wormuth his was an “either-or question.” McCain wanted an answer to this question: “Is the threat of al-Qaida receding or growing?”

Wormuth’s response: “Senator, I would describe it as a persistent threat.” McCain became livid, claiming, “you won’t answer the question.”

He later told reporters he would, as he has so many times before, place a hold on both nominations until they have answered those questions in ways he deems more acceptable.

Twitter took the news viral, several media outlets wrote articles, and popular morning tipsheets and clipping services gave the development prominent play.

Not so fast, Republican and Democratic congressional sources say.

In short, a hold isn’t what it was just a few months ago. And that means, according to multiple congressional sources — despite reports to the contrary — McCain’s dual hold of Work and Wormuth is rather hollow.

The Senate Parliamentarian’s office defines a hold this way: “An informal practice by which a senator informs his or her floor leader that he or she does not wish a particular bill or other measure to reach the floor for consideration. The majority leader need not follow the senator’s wishes but is on notice that the opposing senator may filibuster any motion to proceed to consider the measure.”

But that definition merely reflects traditional Senate rules.

In late November, things got mighty untraditional in the upper chamber. That’s when Senate Majority Leader Sen. Harry Reid, D-Nev., implemented the so-called “nuclear option” for most judicial branch and executive branch nominations. Under Reid’s rules, the tactic of blocking a nomination via a filibuster — or merely the threat of one — is dead.

Short of a sustained Republican Caucus-wide effort to continuously use a very short list of procedural tactics, under the new rules, the best McCain can do is delay the Work and Wormuth nominations, multiple sources say.

An aide to the upper chamber’s top Republican, Sen. Mitch McConnell of Kentucky, said GOP senators have a few floor tricks up their collective sleeve.

“If there’s not unanimous consent to have a vote,” the GOP aide said, “Sen. Reid can file cloture on the nomination — that hasn’t changed.”

But other congressional sources kept noting that is a long shot since it would require a large part of the caucus to block two individuals whom most in Washington believe are well-qualified for the Pentagon’s No. 2 and No. 3 civilian posts.

What’s more, the new rules take away most of the tactics once available to a minority party. For instance, before Reid “went nuclear,” 61 votes were needed to kill the threat of a filibuster. Now, that number is 51; there are 53 Democrats in the Senate and two independents who caucus with them for a total of 55.

A Democratic aide told Defense News, sister publication to the Military Times papers, on Wednesday that “the rules change means the procedural steps to what has to happen to get nominees confirmed is largely the same, but vote numbers are not the same.”

“The majority now only needs 51 senators to break a filibuster,” the Democratic aide said. “So you can still filibuster, or try to.

“Practically, the new rules mean [McCain] could throw out procedural hurdles to take up floor time and make Majority Leader Reid make decisions about how to use precious floor time,” the Democratic aide said. “But, practically, that’s about it.”

Another Democratic aide said if McCain does object to a motion to move to an up-or-down vote on either nomination, Reid simply can file a cloture motion to move to a final vote.

Since the Democrats have the required 51 votes, cloture would be invoked and a final vote could then take place, perhaps immediately. McCain would have no further options to block the nomination at that point, aides said.

A late-November Congressional Research Service report echoes the Democratic aides.

CRS noted that “disputed nominations,” such as with Work and Wormuth, “will likely continue to be debated on the floor, as unanimous consent is still required to limit debate time through any means other than cloture.”

But the report points out that “the effectiveness of a hold, however, ultimately has been grounded in the power of the senator placing the hold to filibuster the nomination and the difficulty of invoking cloture.”

“Invoking cloture is now easier because the support of fewer Senators is necessary,” CRS found. “It is possible that such nominations might receive greater scrutiny at the committee stage.”

That means assuaging McCain’s concerns, and convincing him to, as the Pentagon no doubt would prefer, lift the holds, largely falls on one of his oldest Senate colleagues and friends: Senate Armed Services Committee Chairman Sen. Carl Levin, D-Mich.

A Levin aide said the veteran chairman “has always taken the nominations process and making sure his members get their legitimate questions answered very seriously — and that doesn’t change with the new rules.”

A McCain aide signaled his boss is aware his hold is limited under the new rules.

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