We may soon get our answer – in the U.S. Senate, rather than on the battlefield.
The so-called “nuclear option” currently under discussion is a procedural move that the Democratic majority could use to unilaterally change the rules on filibustering. The move would help Democrats ensure that executive appointments reach a vote on the floor, putting an end to the Republican practice of blocking many of President Obama’s nominations to high-level posts in his administration.
Under ordinary Senate procedure, any effort by Democrats to change the filibuster rules would itself be filibustered to death. But the Senate’s presiding officer – a role constitutionally vested in the vice president – can choose to disregard the rules in a particular instance. Vice President Joe Biden could elect to consider a rule change this way, enabling Democrats to change the filibuster rule with only 51 votes. Democrats currently hold 52 seats, and two independents additionally caucus with them.
The issue has recently taken on added urgency, as the Senate has once again reached a stalemate on the confirmation of presidential appointments. The most recent nominees are three would-be appointees to the U.S. Court of Appeals for the District of Columbia Circuit. Republicans have argued that, given the court’s relatively light workload, the long-standing vacancies would be better left unfilled.
The Senate will also soon have to consider whether to confirm Richard Cordray as head of the Consumer Financial Protection Bureau. Cordray is currently filling the position on a temporary basis as the result of Obama’s controversial recess appointments last year.
The Senate, like most legislative bodies, typically operates on a majority-rules basis. However, there is one key exception. Bringing a debate to a close requires 60 votes for legislative issues and 67 votes for changes to Senate rules.
Senate Majority Leader Harry Reid has threatened to go nuclear to restrict Republicans’ ability to block executive appointments, using the logic that a president is entitled to select his own team. Republicans counter that because of the vast rulemaking powers that are delegated to executive agencies, Senate confirmation is a more than just a courtesy to a co-equal branch of government; it is a vital check on executive power.
It is not clear that Reid could gather even 51 Democratic votes to change the Senate’s rules. A few Democrats with longer memories and more foresight than Reid can see the problems they might create for themselves if they invite Republicans to get into the rule-changing business.
Republicans might win control of the Senate as early as next year’s elections. Nobody can tell who might be in the White House once Obama’s term ends in 2017. By then, the GOP could control both houses of Congress and the executive branch, leaving Democrats to rely on the filibuster to block all sorts of measures they would find distasteful.
The term “nuclear option” was in fact coined in 2005 when Republicans, not Democrats, sought to limit filibustering. The plan laid out at that time, by then-Majority Leader Bill Frist, was remarkably similar to the one currently on the table. Democrats were appalled. As Republicans have pointed out in the current debate, Reid was particularly vocal in opposing the 2005 filibuster reform plan.
Now, Reid hopes he can rationalize his change of heart by limiting the rule change to apply to only confirmation votes, rather than all votes. This is not much of a concession in practice, and Reid’s tactic is not fooling anyone. Since Republicans currently control the House of Representatives, they can already use their majority there to block Democrats’ legislative agenda. The filibuster, on the other hand, is their only lever of influence over executive and judicial appointments, on which the House has no voice.
Republicans would likely respond to Democrats’ limited nuclear option with an escalation, eliminating the filibuster for all votes the next time they take the majority. Senate Minority Leader Mitch McConnell and his colleagues are already threatening this. Sen. Lamar Alexander, R-Tenn., has outlined a retaliatory program that would include repealing the Affordable Care Act, making the entire federal education budget voucher-based, permit drilling in the Arctic National Wildlife Refuge and eliminating the estate tax. Stripped of a filibuster, Democrats would be unable to prevent a Republican president and GOP-dominated Congress from doing any of these things, all of which are anathema to Reid and his caucus.
Another of Alexander’s proposed action items would make the metaphor of the nuclear option literal. “A vote to end the filibuster is a vote to complete Yucca Mountain,” he said, referring to the stalled Yucca Mountain nuclear waste repository project in Reid’s home state of Nevada. (1)
Reid has been quiet about his contemplated attack in recent weeks. Democrats still hope to rally bipartisan support to pass an immigration reform bill. That means staying silent about filibuster changes for now. In the wake of Edward Snowden’s revelations about the National Security Agency’s data collection practices, it is also not an especially convenient time for any branch of government to talk about expanding its powers. But, once immigration reform is in the Senate’s rearview mirror and Snowden’s name is out of the headlines, Reid may go back to fingering his nuclear trigger.
In the end, though, I expect it will amount to nothing more than saber-rattling. The fear of “mutually assured destruction” was enough to stop both the United States and the Soviet Union from firing the first nuclear shot. I think it will be enough to keep the war in the Senate cold as well.
Of course, we won’t know for certain until both sides stand down – or let their bombs loose.
1) The Hill, “Senate GOP vows payback if Reid triggers nuclear option on nominees”
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