Will Harry Reid’s “Nuclear Option” Make The Senate Better, Or Worse?
Harry Reid's "nuclear option" has changed the rules of the game, for now.
As James Joyner noted yesterday, Harry Reid and the Senate Democrats took the unusual step of making a change to the Senate rules in the middle of a session for the purpose of cutting off the opportunities that the (Republican) minority has to repeatedly offer the same Amendment. While that rule change has barred the GOP from making the Parliamentary maneuvers it was making to try to force an early vote on the President’s jobs package, there’s already speculation that Reid’s maneuver will just create bigger problems in the Senate in the future:
Senate Majority Leader Harry Reid’s sudden decision to force a narrow change in the chamber’s procedures could backfire.
First, it could make it harder for Democrats to break GOP filibusters because Republicans may be even less willing to close off debate on legislation.
Even worse for Democrats, the tactics Reid employed to change a Senate precedent could make it easier for Republicans to justify using similar procedures to force simple-majority votes on hugely contentious issues, such as repealing Democratic priorities like health care reform and Wall Street regulations, Senate experts on both sides of the aisle said Friday.
(…)
One of the obvious fallouts is that it will be tougher and tougher to get cloture,” said Marty Paone, who spent more than a decade in the critical position of Democratic secretary, serving as his caucus’ point person on the floor proceedings and the arcane rules of the Senate. It requires 60 votes to invoke cloture, which effectively limits debate and ends a filibuster.
Asked about the move employed by Reid to force a rules change, Paone said: “It’s a can of worms they took down off the shelf — it’s always been there. … Hopefully they’ll put it on the back shelf and forget about it again.”
To get an idea of how the GOP might be able to use this new precedent to their advantage, let’s flash forward to 2013 and assume that the GOP now has control of the House. the White House, and a slim majority in the Senate:
It remains to be seen whether Republicans will try to replicate the move. But some Hill insiders were already questioning what it could mean for major policy fights, like Obama’s health care law.
For instance, if a senator tries to offer an amendment repealing the health care law to a bill – after a filibuster has been defeated – and it’s ruled out of order by the parliamentarian, the chamber could presumably vote by a simple majority to overturn that ruling. And the amendment could stay pending to the bill, which could be then be adopted by a vote in the full Senate.
And if there’s a Republican president and Republican Congress in 2013, the GOP could be in a position to run roughshod over the Senate minority.
“It’s not highly unusual,” said Sarah Binder, an expert on the Senate at the Brookings Institution, referring to a change in precedent. “Of course it raises the specter that other majorities will aggressively try to reinterpret the rules.”
Jonathan Bernstein seems to be more optimistic about the whole thing and argues that the move could lead to broad-based filibuster reform. However, as Suzy Khimm notes, filibuster reform would require the support of centrist Democrats, who are unlikely to go along with significant filibuster reform in order to preserve the power of their own votes. Additionally, she notes, the last time that Senate procedural issues became a major enough public concern to lead to real reform of the rules was when the nation was on the brink of war:
In 1917, a small group of isolationist-minded senators filibustered an amendment that would allow U.S. merchant marines to arm themselves against German submarines that were sinking American ships. The filibuster was so unpopular that it sparked a public outcry and led the Senate to introduce the procedure of cloture to stop such obstructionism. In other words, it took a military attack on the United States — and the obstruction of the country’s ability to protect itself — to compel a change to the rules that both parties could agree on.
So of the two options — partisan escalation or bipartisan agreement — it’s not hard to conclude which is more likely.
Indeed, it isn’t. Just as the Obama Administration has not chosen to abandon many of the tactics utilized by the Bush Administration in the War On Terror, even those that were directly criticized by candidate Obama, there’s every reason to believe that a future Republican Senate majority will utilize the precedent established by Senator Reid to make end runs around a future Democratic minority. Just as inevitable is the prospect of a future Democratic minority utilizing the tactics that have been employed so skillfully by Mitch McConnell and the Republicans. The question becomes whether we will ever reach a point where these procedural tricks will become enough of a point of public outrage, as in 1917, that they’ll create a bipartisan movement to change Senate rules. So far, that hasn’t happened.
When’s the last time anything that happened in Washington DC made anything better?
They’ll be able to do stupid things faster, as well as, good things. Given the current stalemated Congress I’m ready to see how it works, but I’ll reserve judgement until its been in place for a while. And, turn about is fair play. The Republicans should do the same when they have a majority and a Republican President is in the Whitehouse.
I see two major flaws in your argument.
1. The rulings of the parliamentarian are, and have been overridden by majority vote quite frequently, so this is really nothing new. The result of the tactic is new, but it is consistent with preventing post-cloture games.
2. The example above about the health care issue would be the exact opposite. It would be allowing the majority to play post-cloture games. Reid’s move prevented an attempt to significantly change the purpose of a bill post-cloture. The example above would be to allow the majority to significantly alter the purpose of the bill post-cloture. One protects the integrity of a cloture vote and the other destroys it.
This is all such silly pearl-clutching. Senate Republicans have shown they will use any procedural trick they think of to stop anything from happening in the Senate. The only reason McConnell is so busily feigning outrage is because the Dems finally stopped lying down for it.
It will make it worse, pure and simple, as described in today’s Washington Post opinion piece, Reid’s Nuclear Blunder
By crossing the line, Reid did away with a form of collaborative dissent, established by former Congresses, granting any D or R minorities a greater opportunity for a checks and balance type of power, foiling dubious or unsettled displays of legislative muscle from the opposition party. He has also effectively turned up the heat on even more contentious behavior and power-grabbing impulses that can be acted upon by future slim Senate majorities.
All of this was done in order to circumvent a vote coming up that most certainly would have failed, by most likely a bipartisan vote, further embarrassing the president, similar to the vote in Spring ’11 where Obama’s budget was defeated unanimously.
@jan:
Washington Post opinion piece, Reid’s Nuclear Blunder
You mean Marc Theissen’s opinion piece. It ignores the fact that the only filibuster option that was being prevented was a post-cloture filibuster, which the prior rules were intended to prevent. The maneuver that was being attempted was a motion to suspend the rules in order to allow non-germane amendments, post-cloture. This is a maneuver that could be used by the majority to gut and replace a bill post-cloture to eliminate a filibuster. While the change in rules occurred in the context of something the minority wanted to do (and lose), it’s real effect would be to prevent the majority from winning by the same maneuver. Contrary to how this is being presented, the rule change was necessary to prevent a new attempt to break the way cloture votes operate.
In other words, the precedent established here would prevent the majority party from doing what you claim it is allowing them to do.
@jan:
Marc Thiessen? Marc Thiessen?
The guy who advocated strongly for torture?
The guy who wrote a book called “Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack”
The guy whose been proven wrong more times than not?
That guy? That’s the guy you’re basing your comment on?
That says alot about you, Jan. And, as usual, none of it good.
BTW – There is a huge difference between a “Washington Post Editorial” – which is written by the entire staff on behalf of the newspaper to address a specific policy position, and an “Opinion Article written by one of the Opinion Writers on the Editorial Pages of the Washington Post”. That you can conflate those two very different pieces says, again, alot about you. Again, none of it good.
As anyone who has dealt with spoiled children knows, Reid should not give into the Republicans’ threat to behave even worse if they don’t get their way.
@DRE:
Your post above added another layer to this event, which I spent time researching here and other places
And, you are right, that this scenario didn’t unfold in the way scripted by many publications. Basically, McConnell, by adding the AJA to another bill dealing with China’s currency, was indeed attempting to out-maneuver the dems and clear the air more of republican obstructionism that Obama has been pushing for weeks.
Such a diversion, though, is so reminiscent of actions taken by the dems in the past, of attaching an array of difficult measures to, let’s say military bills, as a way of passing something controversial or slimy. Dems, IMO, have always been more skilled at forcing the R’s hands, or tying them up, in ways that would make R’s look either bad or silly if they didn’t go along with these set-ups. That’s why there has always been so much criticism generated from the conservative base to their R representatives, demanding that the R’s get down and dirty in order to successfully compete with the no-holds-barred tactics of the liberal left democratics.
While I personally don’t condone either political side utilizing distortions of rules, as a means to getting their end result, both sides, nevertheless, engage in them. And, while the dems seemed to be more flagrant of using such craftiness in the past, the republicans now appear to be playing this game of subtle trickery as well.
The public, though, is the player caught in the middle. Many don’t really know what is going on in the back ground. Consequently, their opinions and judgments will primarily be formed by news stories and appearances of wrongdoing. In this particular situation, I think the dems will be holding the bigger bag of consequences, as the ‘nuclear option’ indictment has a negative ring to it. And, in the bigger picture, with better-than-good odds of a R majority in the next congress, Reid’s action, whether it had merit or not, will be opening the door for at least continuing, if not being a catalyst for even more chicanery in the future.
The senate rules depend on personal integrity and honor to function. Such are becoming about as quaint as the Geneva Convention, these days.
Anybody read Gates Medal of Liberty speech? It’s short and to the point on what has fundamentally changed in our politics.
ttp://www.constitutioncenter.org/Files/2011LM_GatesSpeech.pdf
DRE, you are missing the point of both the Politico and WaPost opinion columns. It is not the filibuster but rather that Reid used what is referred to as the nuclear option so that rule changes can now be made by simple majority vote. What Reid really wanted to accomplish (and did), and what many Republicans wanted to do in 2005 (disallow filibusters on judicial nominations), is secondary to the real issue.
Unless Reid backtracks quickly, the precedent will have been set that allows a straight majority to change Senate rules. Furthermore, because Reid employed the nuclear option on purely political grounds, Democrats will be hard pressed to argue against it when the GOP eventually wields this parliamentary tool.
How many times has Obama told the public and the congress to get his jobs bill passed. What I got from articles I read concerning the “nuclear option” used by Reid was senate minority Leader Mitch McConnell wanted Reid to bring Obamas jobs bill to the floor for a vote. Reid does not have the votes within his own party to get the bill passed so to avoid political embarrassment he used the “nuclear option”. It is quite unsetting to me in the sense that I firmly believe that minorities need to be able to have a discourse on what is being brought to the floor and not be overruled by a simple majority. The filibuster provides a system of checks and balances in the senate and this can lead to some serious consequences for both parties in the future.
Jan links to mark theissen…a bush/cheney sychophant and torture apologist…to show that Reids move will make things worse.
Well that settles it then. Torture good. Limiting obstruction bad.
If Jan was any further to the right she would fall off the flat earth.
@bains:
Yes, that is the unintended consequences of Reid’s action. It has more to do with future ramifications, by setting a precedent upsetting some traditional checks and balances boundaries, then the present one of allowing the dems to add more screws to the AJA bill.
@Hey Norm:
Your replies are not only incoherent hatchet jobs, but you keep attaching linkages to the discussion having nothing to do with the topic. It’s like you’ve run out of relevant things to say.
@jan: Republicans in the Senate refuse to vote on confirming the head of the new consumer financial protection bureau, despite the fact they all say he’s fully qualified. They won’t vote unless the Democrats agree to strip all the power away from the new agency — an agency that was voted into law by Congress last year.
There are no “future ramifications” here. Republicans already engage in government by extortion, using every procedural trick they can think of to make sure nothing gets passed. They put secret holds on nominees, they stall, they dawdle. McConnell has said right up front that the only priority for Republicans in the Senate is destroying Obama’s presidency, and the hell with whatever that does to the country.
So spare me the crocodile tears over “future ramifications.” They’ll make things worse if they feel like it, and it won’t be because Reid hurt their feelings.
@bains:
DRE, you are missing the point
No, I’m not missing the point, I’m saying the point is wrong. The “nuclear option” is using a majority vote to remove the ability of the minority to block cloture with 40 votes. Reid did nothing of the sort. Reid successfully appealed the ruling of the chair, saying that he got Rule 22 wrong. Rulings of the chair are appealed and overturned by majority vote fairly often so that is nothing new. The only thing new is that precedent now holds that a motion to suspend the rules to add non-germane amendments can be ruled as dilatory and out of order, and previous precedent was to allow motions to suspend. These motions to suspend have no relation to the bill that is being debated under post-cloture rules, they are just attemps force unrelated votes in violation of Rule 22 (which is the rule they wish to suspend.) Before 2010 motions to suspend rule 22 were very rare but Republicans had started using them regularly and in a matter that was clearly dilatory. What Reid did was unusual but not close to unprecedented and was clearly justified by circumstances, reforming a rule to remove a loophole that was being abused.
No Jan…you invoked the opinion of a supporter of torture. That’s not a hatchet job…it’s fact. If you want to be taken seriously take your opinions from legitimate sources…or even better…actually form your own for the first time.
There are no qualifying legitimate sources, as far as you are concerned, except those who agree with your particular political ideology.
Do you ever consider the fact that far left leaning literature rarely talks about issues that agree with the right side of the aisle. They either criticize those issues or dismiss them, altogether.
What I’m finding, quite frankly in most publications, is that each source usually has either left or right ideology which dictates what and how they deal with political topics. And, because of that, one will usually get the left or right of center arguments reflecting the publication’s own political philosophy. It doesn’t necessarily make their material wrong, or right. What it comprises is a POV directed by subtle, if not open, ideology of the magazine, newspaper, blog etc..
KOS, for instance, is pretty far left, but I read it anyway to get their perspective. Some other blogs are far right, like Newsmax. WSJ, Reason, The Economist, Salon, Slate, Politico, Washington Post, Washington Examiner, NYT, ad infinitum are on different places on the right/left political spectrum. However, they all give you their unique take and insight on given issues, which, in turn, the reader can analyze and come up with their own conclusions. That’s how critical thinking works. with both sides POVs in the mix.
@DRE: You are still sidestepping the heart of the issue. Whereas you want to focus on why Reid did what he did, the real issue, the nuclear option, is how he accomplished it. Senate operates under arcane rules that while voidable, have been adhered to for decades. It has long been known that that there exists a gentleman’s agreement that to change the parliamentary rules, one needs a super majority. Reid invoked the nuclear option that allows a simple majority to change Senate rules.
From the not always reliable wikipedia:
You keep on focusing on the filibuster (as wikipedia does), but the reality is that any Senate parliamentary rule can now be overturned by simple majority. Reid is using perfectly legal, but uncharted paths to prevent his Democratic Party coalition from having to issue recorded votes on a bill proffered by his party’s President that by all accounts will go down in flames; e.g. his gambit is entirely political. Without question, McConnell is doing the same, but McConnell is not changing the rules to accomplish his political ends. It is Reid that is setting the new precedent. And one would be foolish to think that once this precedent is established (the longer Reid holds to this ruling, the longer the cement of precedent sets), that the GOP will not use it when it suits their needs.
The issue is not what the rule changes accomplished, rather that Reid so cavalierly changed the rules. Do you really want to cede any future GOP Senate Majority leader that plenipotentiary power?
@bains:
No, I’m not. My whole point is that all that happened was that a ruling by the presiding officer was appealed, and the ruling was overruled by majority vote. This is not new. It has happened many times in the past. In fact about 20% of the time that a ruling is appealed it is overruled by majority vote. No rule was changed. Rule 22 existed before and it still does. A loophole that was being used to violate Rule 22 was ruled out of order by the majority. It was the minority abuse of the loophole that was threatening change to the “Gentlemen’s Agreement” operation of the Senate.
@jan:
While this happens on both sides of the political spectrum, this is far more commonplace on the left. Very few of the active left-o-centerites will admit that ,with the exceptions of FNC, Investors Business Daily and the WSJ opinion page, all other major news broadcasts and publications are to the left of center, and some markedly so.
Most on the right know this, and willingly admit that FNC, IBD and WSJOpEd are right of center. As a consequence, more of the right will digest a greater variety of news sources, abet with a jaundiced eye, in an attempt to glean truth. I regularly read the NYTimes, the Wash and DenPost, the Economist, and even the Nation and Mother Jones. Conversely, those on the left, by and large, take at face value what the preponderance of traditional news sources give them -while summarily discarding anything from the few right of center sources available. I know of very few who regularly read the Weekly Standard or National Review (in fact, of all my lefty family and friends, the only “conservative” POV they get is David Brooks in the NYTimes or PBSNews Hour).
After a solid center/right of center start, OTB has been trending left, with center (James), left libertarian (Doug) and liberal (all others ‘cept Dodd). As a result, the comment sections have settled into a mostly lefty echo chamber, far from what they used to be. Take a poll, and I suspect that many of those disliking your comments regularly frequent those and other virulently anti-right sites. The resurrected JournoList has to have ‘organic’ outlets to disseminate talking points. And it helps their cause to have ostensibly center/right-o-center sites re-broadcast them with but minor critiques.
We used to be able to engage in honest disagreements here. Alas, I still try, for this site has yet to jump off of the precipice as did Obsidian Wings and Balloon Juice.
@DRE: Again, from the not always reliable wikipedia:
[emphasis mine]
Rule XXII has been used before. BUT, have parliamentary procedures (senate rules) ever been changed just prior to the invocation of rule XXII to allow a mere majority to change the rules?
Always the whining and victimization from the usual suspects…James is now in the center? And there is nothing “left” about Doug, with his constant false equivalencies between Democrats and Republicans…and everyone else except Dodd is liberal? Please…I’m sure that will come as a shock to Steve Verdon…it’s amazing where people can be placed when the goalposts are moved so far starboard…
@bains:
Bain
I appreciate a history from you of this blog’s political evolution. My posting has been relatively recent. However, I found the comments to be somewhat different from the ‘overview’ statement expressing it’s perspective as: For the most part, our views are Classical Liberal: a strong belief in free trade, limited government, and respect for human rights.
The limited government part is especially a far cry from the primarily social progressivism that is predominantly expressed in daily remarks. Except for a paltry few, most people seem to espouse a strong belief in a large centralized government which is highly regulatory, anti business, pro entitlements, capping wealth production and redistributing it through more aggressive progressive taxation, and being less than supportive of free trade agreements.
It’s also refreshing to hear your take on reading various publications, being able to decipher their political slants without trashing them because they may express viewpoints counter to your own political ideology.
Like you, I read a variety of stuff out there, and it gives me a broader POV of the various opinions and mind sets that make up this country. It’s healthy to draw ones’ conclusions by first looking at it from all sides. However, afterwards I do mainly track conservative when it comes to fiscal considerations. And, when I express that here, then accusations of listening to Limbaugh, FOX, come spilling forth, and I just have to shrug off the futility of it all…….
@An Interested Party:
For every action, there is an equal and opposite reaction. Newton’s Third Law.
Any rightward movement of the political goal posts has been a compensatory one, in reaction to the leftward lurch that took place first.
Let’s cut through all the felgercarb and boil this down to one simple test: how will Reid’s move be perceived once the Republicans take the Senate back, and have it at their disposal?
Let me go way, way out on a limb here and say that the left and their lapdog media and say that it’s a naked exercise in tyranny and a blow against democracy.
J.
@jan:
@bains in response to Jan:
Bull on both of you.
* Basic research 101 *
There are legitimate sources in terms of dealing in matters of FACT. Generally speaking Newspapers news sections, scientific journals, and other edited publications — which have fact checking departments or peer review methods — are considered legitimate.
Newspapers editorials however cannot be considered legitimate for anything else than representing opinions. That is because newspaper editorials ARE NOT FACT CHECKED. Let me repeat that again, NEWSPAPER EDITORIALS ARE NOT FACT CHECKED. They are not edited by the newspaper. They are not proofed. AND THUS THE EDITORIALIST IS FREE TO WRITE WHATEVER THEY WANT AND CALL IT FACT! That includes getting a quote right but getting the context completely wrong.
Blogs — which also typically don’t have fact checking — are also not inherently a legitimate source. Further the more partisan (on either side) the blog, the more someone needs to distrust when they are taking a specific stand that matches their ideology.
ok… onto Research 202
Because a certain source is considered legitimate does that mean we can trust it? Likewise should we always distrust what we read in blogs? The answer of course is NO to both. Legitimate institutions with fact checkers do get things wrong.
That’s why you have to look at a wide range of sources to triangulate the truth. And we expect the sources you post to do the same thing. For example, a blogger concerned with getting the facts right links to the actual documents that they are quoting or cites facts with a link back to the fact-checked publication or the original source document.
Which finally gets me to the fact that Jan, so often the links you post are either:
a. To editorials — more often than not written by Conservative Pundits (I’m separating them from Conservative Thinkers, of whom there are many) who are concerned first and foremost with scoring political points or furthering their careers as talking heads. The editorials are also written to conservative audiences with the goal of epistemological closure rather than challenging any viewpoints. This is the difference between Marc Theissen (pundit/shill) and Ross Douthat (thinker) or Mark Levin (pundit/shill) and James Manzi (thinker) or Dick Morris (pundit/shill/Almost always wrong) and Daniel Larison (thinker).
b. To conservative “fact” pages on things like Anti-Global warming that are maintained by average people/conservative talkers. The problem in this case is you quote the page as if its gospel truth, when about 15 minutes of research would demonstrate that the author of the page has greatly twisted the facts that he’s citing.
So here trying to say if you brought better links — ones that appeared in fact-checked sections, were written by people who are recognized across political boundaries as experts in their field (and by the way are writing in their fields), or are providing links to back up their statements (usually to material that falls into one of the other of the previous two categories) — then you wouldn’t hear anywhere near the amount of complaints.
But if you choose to continue to post Powerline editorials or Joe-Sixpacks “Here’s why the entire scientific establishment is getting climate change wrong.” or essays where an expert is writing outside their field of experience… well, then you’re not going to be taken seriously… and it doesn’t appear that you want to be taken seriously either.
@Jay Tea:
how will Reid’s move be perceived once the Republicans take the Senate back, and have it at their disposal?
I for one am willing to state categorically that I will have no objection to a Republican majority ruling a post-cloture motion to suspend rule 22 out of order.
I am also willing to state that I will have no objection to a Republican majority voting to over-rule the chair if the Democratic minority finds some new way to exploit a technicality in precedent that violates the obvious intent of an existing rule. In fact I think that the majority should do this in order to allow the Senate to function reasonably.
If they decide to actually change a rule by majority vote, especially in a way that denies the minority a long held right, then I would have to consider the context.
@Mataconis:
“Harry Reid and the Senate Democrats took the unusual step” …
Typical pandering through understatement. If accuracy were a concern here (heaven forbid) the correct phrasing would be ” …took the unprecedented step …
But that would make the politics look – well – purely political, as well as revealing the Draconian and hypocritical lengths to which the libs will go to protect their man in the White House. Were a Republican Senate to do this the hue and cry would sound like a trumpet for weeks. Any honest person would know and admit this. In the current environment (read media suck-fest on Obama’s bottom ) it gets barely a mention. But there’s no bias out there. Uh Huh. And you think you’re going to win the next election, libs? As AeroSmith eloquently sings …. “Dream On.”