With the last minute deal that has apparently allowed the nomination of Richard Cordray to go forward while making a deal to trade out two of the President’s nominees for the National Labor Relations Board it would appear that the Senate has once again averted a confrontation over the so-called “nuclear option.” Those hoping for real filibuster reform thus stand, once again, disappointed as they were at the start of the 112th Congress in January 2011 and the start of the 113th Congress in January of this year are likely once again disappointed but, as Chris Cillizza notes, the truth of the matter is that the “nuclear option” is really a threat that will never be followed through on:
First, as we wrote last week when warning Reid to think twice before invoking the nuclear option, politics works like a pendulum — meaning that things might be swinging your side’s way for the moment but they will inevitably swing against you at some point in the future. Changing the rules to allow the majority to rule — or at least rule more — means that the rules changes will eventually be used to hamper your side when you are in the minority. And, no one wants to be on the hook for that sort of political boomerang effect.
Second, the leaders of the two parties in the Senate are, always, institutionalists. You don’t rise to the top of your party without a) spending lots of years in the Senate b) figuring out how to work within the system and c) relishing/treasuring the way the levers of power work. It’s impossible — or virtually impossible — to imagine someone becoming the Senate majority leader who isn’t accurately identified as an institutionalist. (The closest we came in modern memory was Tennessee Sen. Bill Frist , but even he walked back from the nuclear option ledge.) Institutionalists, by definition, seek to defend and preserve institutions. They have no interest in blowing it up or even really risking that possibility.
Third, the general public has absolutely no interest in or knowledge of filibusters. Given that lack of interest, it doesn’t make all that much sense to expend a significant amount of political capital within your own party and poke the other side directly in the eye.
Cillizza is largely correct here, and it’s one of the primary reasons we’ve never seen this so-called “nuclear option” utilized any of the times it was threatened, whether that was back during the Bush Administration in a fight over Judicial nominations or the now three times that the Reid has pushed the Senate to the edge of a confrontation over the filibuster only to hold back at the end. Those who are in favor of filibuster reform, if not outright elimination of the filibuster are likely to be as disappointed with Reid today as they have been in the past, however it seems rather clear at this point that what Reid is really concerned about is moving the business of the Senate forward. If pushing through filibuster reform in the manner that the “nuclear option” would do so were the only way to do that, then perhaps he would take that route, but as we’ve seen in the past there are others paths to accomplish his goal while still preserving Senate traditions like the filibuster that Democrats will want to make use of when they are in the minority someday, something that could happen sooner rather than later. Unlike the reformers like Merkely and others, Reid has been around long enough to understand what it would mean to blow up the comity of the Senate by pressing that “nuclear option” button, so he clearly wouldn’t be willing to push it unless it was absolutely necessary.
Indeed, several pundits on the left are insisting this afternoon that the Democrats won some major concessions from the GOP today, among them Steve Benen, Jonathan Chait, and Ezra Klein, who puts it this way:
The Senate didn’t actually go nuclear today. But the majority took out a nuke, put it on the table, and made clear they can detonate it whenever they feel like.
It’s clear now that Reid will change the rules if he believes it necessary. But so too will McConnell. If Republicans retake the Senate in 2014 and the presidency in 2016, there’s no way Majority Leader McConnell will permit Democrats to routinely filibuster or otherwise obstruct President Christie’s nominees. If they do, he’ll throw Reid’s words back in their face and make the change Reid threatened to make today.
The result is that the minority’s ability to filibuster executive-branch nominees was weakened, even if it wasn’t fully eliminated. The minority can use the filibuster against particularly objectionable nominees that the majority isn’t overly committed to confirming. But they do so with the express indulgence of the majority. If the minority uses it too often, or chooses a nominee the majority really wants to confirm, the privilege of filibustering nominees — and that’s what it is now, a privilege granted by the majority — will be taken away. No majority is going to take that nuke off the table.
Perhaps Klein has a point here, but that is something we’ll only be able to judge in retrospect. For now, what seems clear is that the Senate has once again walked its way back from confrontation via accomodation. Given the history of the institution, it’s not surprising that this is how it all turned out in the end.
None of this means that some reform of the filibuster, and of other Senate practices like the “Hold” isn’t necessary, but today’s events make clear that the Senate is not a place that welcomes radical change no matter who’s in charge. The filibuster is alive and well, and that’s unlikely to change for the foreseeable future.
