Democrats Thinking ‘Nuclear Option’

Remember when Democrats thought changing the rules to abolish filibustering was an outrage against the Constitution? They're older and wiser now.

In a classic illustration of the dictum Where you stand is where you sit, Senate Democrats, frustrated at Republican maneuvering to run out the clock until after the elections, are considering the so-called nuclear option.   And Ezra Klein seems to be on board:

If you can’t manage the 60 votes to overcome a filibuster, you can’t manage the 67 votes to change the rules and end the filibuster. At least in theory.

But in practice, there’s another path open to the Senate’s growing ranks of reformers: The so-called “constitutional option,” which is being pushed particularly hard by Sen. Tom Udall, but is increasingly being seen as a viable path forward by his colleagues.

The constitutional option gets its name from Article I, Section V of the Constitution, which states that “Each House may determine the Rules of its Proceedings.” In order to fulfill this constitutional order, the Senate must be able to, well, determine its rules. A filibuster, technically, is a way to stop the Senate from determining something by refusing to allow it to move to a vote. Because stopping the Senate from considering its own rules would be unconstitutional, the chair can rule against the filibuster, and the Senate could then move to change its rules on a majority vote.

[…]

If Democrats lay out a clear path to changing the rules through a majority vote, and if they show enough unity to convince Republicans that they’ll really try it, you might see a hasty decision to reach some sort of bipartisan compromise on the rules. But if Democrats push this strategy only to find themselves unable to follow through on it, they may find that they’ve lost their ability to protest rules changes if Republicans decide to pursue the same strategy when they eventually retake the Senate.

Of course, Democrats screamed bloody hell when frustrated Republicans were considering this very thing for the very limited purpose of eliminating the filibuster for Supreme Court nominee confirmation votes.  Ultimately, the compromise by the so-called Gang of 14 ended the threat.

I supported the narrow use — based on the principle that the advise and consent power is meant to be a check on presidential authority and shouldn’t require a supermajority — but opposed getting rid of the filibuster outright.    Regardless of which party’s in power, I think it’s important that the minority have the ability to stop major legislation that has only narrow support and that the minority power should be honor bound to use that power sparingly.

Some, like Matthew Yglesias for example, are philosophical majoritarians, wanting the U.S. to function more like a parliamentary system.   While I think that’s a bad idea for a variety of reasons, it’s a perfectly reasonable and consistent principle.

Too many, though, are situationally anti-filibuster, finding it outrageous when used to stop their party from enacting its platform but happy to see it used when they’re in the minority.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. wr says:

    It’s intellectually dishonest to make this case of hypocrisy against the Democrats without adknowledging that the Republicans have used the filibuster in ways no one ever dreamed of before. They’ve shut down the Senate, making 60 votes the minimum for any vote on any issue. Neither party had every done anything like this before.

  2. just me says:

    I think this is mostly a matter of whose ox is being gored. The democrats were pretty quick to threaten and use filibuster, but they didn’t need to use it on many pieces of legislation, because the smaller GOP majority and threats of filibuster were enough to actually create compromise.

    I don’t think the democrats have been too interested in GOP compromise and a lot of the compromising done on major bills was done more for the moderate democrats to keep their votes than to really get the GOP involved in the creation of the any law. That said is the GOP really filibustering every single piece of legislation or the controversial ones that get media attention? There is a reason the controversial legislation gets filibustered and gets attention. I will accept that the GOP is probably using the filibuster more right now than previous congresses but I am not sure that means why they are filibustering is wrong.

    I think the filibuster shouldn’t be a requirement for judicial nominations at all, or really any presidential appointment. If the minority can’t make the case that a nominee isn’t fit, then they should be approved.

    Legislation is something different and I don’t think the rules should be changed in such a way that any legislation can be railroaded through in spite of opposition. And right now the only reason the democrats don’t like the filibuster is because it is their ox being gored. Let the senate change hands and they will be singing a different tune.

  3. G.A.Phillips says:
  4. Brummagem Joe says:

    The problem is the Republicans have created an environment where virtually NO legislation that has even a mildly controversial edge to it even gets voted on without a super majority of 60 for cloture. I wouldn’t like to see the filibuster eliminated but it’s a device that is clearly being abused at present. And of course what is sauce for the goose, so if at some point the Republicans win back a narrow majority (they are never going to get to 60) the Dems can quite legitimately point to the events of the last 18 months as justification for obstruction a outrance. Given the considerable problems the country faces this does not seem a good idea. So the alternatives would appear to be a) the Republicans start showing a bit of statesmanship; b) some restrictions are imposed on the use of the filibuster; c) endless gridlock. Take your pick.

  5. One improvement I think would be useful is to force people doing a fillibuster to actually fillibuster again (e.g. they have to stand there and keep talking) rather than the fake filibusters we have now which is really more of motion to postpone indefinitely that only requires 40% to pass.

  6. Zelsdorf Ragshaft III says:

    Considering the mood of the country and how well the Democratic agenda has pleased so many. It is not doubt a good idea for the democrats to blow the bottom out of a sinking ship with the nuclear option. The dems are going to lose the house. Why not make it a sure thing to lose the Senate as well? Scoffers only have 98 days to wait to find out. I think we will know much sooner than that as polls will foretell the demise of the Democratic party as it is now configured with the left leading the way. Interestingly enough that will make easier the prospect of oversight into the behavior of this President. Who knows what will be found. Maybe high crimes and misdemeanors. A 51 seat majority would get Hillary the nomination in 2012;

  7. Greg says:

    A few points in no particular order:

    – Just for the people who don’t follow him, Ezra falls into the principled category and not the situational category. His favored approach to abolishing the filibuster is to have it take effect in six years, so both sides can agree to it and there would be no realistic way of knowing who will benefit then.

    – The Republicans have used it dramatically more this congress than at any time in the past, not just for controversial bills. Some were on nominees that went on to pass with 70-90 votes — it was purely to gum up the works.

    – The Republicans are admittedly using it dramatically more because they have to, they have no power otherwise. That said, is it really a good idea in terms of governance to require a supermajority to do anything? The house manages to run on a simple majority vote. It’s one thing if this was reserved for exceptional circumstances but it no longer is.

    – At least on the health care bill, I do think they made a genuine effort to bring in Republican ideas but after a while it became clear that there weren’t any votes to be had. Max Baucus bent over backwards, made compromises that angered his own party, drew the process out forever, and only ended up with Olympia Snowe being willing to vote it out of committee. She explicitly said not to assume that meant she would vote for the final bill too. After that point it made sense to give up and focus on their own caucus instead. Some people who may have started out negotiating in good faith were clearly no longer doing so by the end (Chuck Grassley.)

  8. wr says:

    ZR3 — High crimes and misdemeanors now means being a Democrat when Republicans control congress. Do you really think the American people are so stupid they would stand for the second politically motivated impeachment of a Democratic president in a row?

  9. G.A.Phillips says:

    ***The problem is the Republicans have created an environment where virtually NO legislation that has even a mildly controversial edge to it even gets voted on without a super majority of 60 for cloture. I wouldn’t like to see the filibuster eliminated but it’s a device that is clearly being abused at present.*** YO DUDE—> http://the-ranting-bartender.com/harrys_education.html

  10. Michael Reynolds says:

    wr:

    Do you really think

    No. No, he doesn’t.

  11. Brummagem Joe says:

    As is fairly obvious from some comments here, the hard right aren’t really interested in compromise although compromise lies at the heart of the practise of politics in a democratic society. So I guess we’ll have to do it the hard way. Endless gridlock until at some point the American people figure out what’s going on and make appropriate electoral dispositions.

  12. steve says:

    The filibuster and holds should both go or be severely limited. Maybe require 54 or 55 votes for cloture. Any election where one side gets 55% of the vote is considered a landslide now. No hold over one month. Any nomination not getting a hearing in 6 months gets an automatic appointment.

    Steve

  13. just me says:

    I would have no problem with removing the holds, or at least changing the practice so the hold is limited in time (eg if a congress member had a real legitimate concern, could share that concern with committee members and then committee members could take that under advisement when they vote).

    I would also be fine if the rules for filibuster required an actual filibuster where those filibustering would have to maintain a constant vigil. However, I think the filibuster is a perfectly fine tool for the minority party to use, especially in a situation where it is essentially the only power the minority party may have. Without the filibuster, what is there to slow down legislation?

  14. Vast Variety says:

    “minority power should be honor bound to use that power sparingly.”

    And that’s the crux of the whole deal right there. The current minority party has shown that they have absolutely no honor and the filibusterer has become almost a standard part of the procedure occurring on almost every vote.

    I’m not in favor of getting rid of the filibusterer all together but seriously something has to change because what is happening now is entirely unacceptable because it gives the Republicans absolutely no incentive what so ever to actually negotiate changes to legislation that would make some of the crap Democrats have passed make more sense.

  15. James H says:

    I suppose I’m situational on it, too. But my problem is that the Senate minority doesn’t use the filibuster sparingly anymore. Essentially, major legislation now requires a three-fifths vote to clear the Senate … and I’m not convinced that’s a winning system for our government ..

    The real problem, I think, is the excess of party unity. We now see virtual lock-step voting on so many matters that there are no longer checks to prevent the minority from overusing the filibuster.

  16. Tano says:

    “the minority power should be honor bound to use that power sparingly.”

    And what to do when the minority acts dishonorably?

    Thats the issue here. Your standard is rather moot – given that its violation is what has caused this issue to come to the fore in the first place.

    “I think it’s important that the minority have the ability to stop major legislation that has only narrow support ”

    59 votes out of 100 is not narrow support. Elections that are decided by a 59% majority are generally referred to as “landslides”. A 60 vote majority in the Senate is extremely rare. By your standard, major legislation could only be passed in a few very brief windows per century – unless, of course, those minority parties acted honorably. But that is not happening now – and the Democrats, if they are someday soon in the minority, will not allow Republican measures to pass if their own were all blocked.

    So you have a recipe for permanent gridlock. And after y’all have mouthed all the predictable snarky comments about such a state of affairs, the truth will remain that we cannot run our country like that.

  17. Brummagem Joe says:

    “So you have a recipe for permanent gridlock. And after y’all have mouthed all the predictable snarky comments about such a state of affairs, the truth will remain that we cannot run our country like that.”

    Ultimately this is the problem. And if you want an example of what happens with this state of affairs look no further than CA which is becoming ungovernable because of the need for super majorities. At the moment the Republicans are demonstrating a total absence of statesmanship and they will have no one else but themselves to blame if the shoe is ever on the other foot. The fact that the bill on campaign disclosure cannot make it to a vote even though there were 59 votes for cloture is an outrage. Does the country really want a situation where unions and corporations some of whom may be foreign controlled can make secret campaign contributions to front groups that can thereby influence the outcome of elections under the cover of darkness. It defies belief. Unfortunately, the GOP has lost all sense of proportion which is why increasing numbers of even right of center commentators are starting to question their ability to govern effectively.