Harry Reid Backs Away From The Nuclear Option, Filibuster Alive And Well

Once again, the threat of the "nuclear option" appears to have had less megatonnage than some expected and others hoped.

Filibuster

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 BenenJonathan 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.

FILED UNDER: Congress, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    Now if only the House could be dissolved ….

  2. Jib says:

    You missed it, the repubs gave in totally. This is what happened in 2005 when the repubs threatened the nuclear option with the dems blocking Bush judges. The dems capitulated then like the repubs did now and the filibuster continues but somewhat weakened.

    The reason this is a total win for dems is that the dems did not want to end filibuster either. They would if they had to in this case but they really did not want to. Filibusters, along with holds are how individual senators maintain a lot of their power. They use the threat of them to negotiate a bunch of stuff behind the scenes. When faced with losing the privilege, the minority capitulates in order to keep it alive for tomorrows fights and the majority is only too happy to let them since many in the majority with are using the threat of filibuster for their own purposes.

  3. Gustopher says:

    I think Reid wants the filibuster to survive, as it was traditionally used — rarely, and in exceptional cases.

    And this is a step towards that. Not a bad day — although I don’t trust the Republicans to hold to their part any more than they did last time. But we can deal with that on another day.

  4. michael reynolds says:

    I think you have this wrong, Doug. The “nuke” worked just the way nukes always have: as a threat. The Democrats didn’t want to get rid of the filibuster, they wanted the GOP to stop acting like petulant asshats and confirm Cordray and others.

    Outcome? Cordray will be confirmed. That was the goal, that’s been achieved, that’s a win.

  5. Caj says:

    Harry Reid is a nice man but has the guts of a church mouse! He doesn’t need to threaten the nuclear option, he needs to get a spine and actually do it! Democrats are so weak kneed it’s infuriating at times. Republicans will go on TV in a gang and they will lie like there’s no tomorrow with absolutely no guilt at all. What do Democrats do? They stay away from the TV instead of getting out there and putting the real facts out there about the lies Republicans are so good at telling!

  6. C. Clavin says:

    Misleading headlines aside…the filibuster was never going anywhere.
    The President is getting his administrative positions filled. That’s all. Incredible that the so-called Republicans require such machinations in order to commit basic governance.

  7. Robert Levine says:

    The filibuster as an abstract concept may be alive and well, but the viability of filibustering appointments to executive branch positions just took a major hit. Such filibusters were always the least attractive kind, as they gave a minority the ability to block the ability of an elected president to staff his/her administration. The Republicans made it even worse by using such filibusters as a way of preventing agencies established by legislation from functioning. I suspect we will see no more serious attempts to block such nominations during this Administration, as Democrats explicitly refused to renounce the nuclear option in the case of such filibusters in the future.

    And, if that means that President Rubio can get his executive branch nominations confirmed by a 51-vote majority, I’m fine with that too. Elections should, at the minimum, mean that a President gets to staff his/her administration.

  8. stonetools says:

    Personally I’d prefer that Harry Reid pulled the trigger and eliminated the filibuster together. This is like the Missouri Compromise to slavery- a stopgap solution to what will be a perennial problem, a Band Aid on a running abscess. But since I am not God Emperor of the United States, I’ll take it.
    So Harry, you can put the gun back in your holster. But keep the gun ready and loaded. You may just need it again in a couple of weeks.

  9. Matt Bernius says:

    @michael reynolds:
    You beat me to it.

    This very much was a case where the option metaphorically functioned as the weapon it’s been named for. And part of that threat is an understanding that exercising the option would essentially be a form of political mutually assured destruction.

    Given that the Senate is the “conservative” — in terms of function — body, the threat of the nuclear option is most likely all that is ever needed.

    Thankfully, there isn’t a similar construct in the House, as the very nature of that body makes it likely that they would eventually go all Slim Pickin’s.

  10. steve s says:

    This is how insane the GOP has gone. It’s now a significant victory that Obama can get a vote on his appointees.

  11. bill says:

    @al-Ameda: the house is the most representative branch of the gov’t., but only when they agree with your causes? lame.

  12. michael reynolds says:

    @bill:

    No, the House is the most representative part of government . . . and that’s why at least half of them are cretins.

  13. Gromitt Gunn says:

    @bill: At this point, the House is less representative than the Senate, IMHO, since districts have been gerrymandered to the point of sinecure.

  14. rudderpedals says:

    @Gromitt Gunn: Not just that but they’re also massive. Compare to other parliaments where a rep runs in a district with 15K constituents vs the 70-350K here. More members would make it harder to buy majorities and result in members more closely reflecting their constituencies.