Using the Nuclear Option: What Is It and How Does It Work? [VIDEO]
Using the Nuclear Option: What Is It and How Does It Work? [VIDEO]
While Judge Neil Gorsuch has moved out of the Judiciary Committee and is headed for a Senate confirmation vote this week, the Democrats and Republicans are also moving into position for a showdown over their own parlimentary rules – and ones that don’t translate well to the American public at large. We hear the term “nuclear option” and think “large explosion.” Well, not so much when it comes to the Senate rules. Yes, it changes Senate procedure from now on. But nothing actually explodes – except maybe the opposing party’s talking heads.
So what exactly is the nuclear option?
Though it is sometimes referred to as a rule change, it’s actually a change in Senate precedent.
The Senate currently has 44 rules. But altering those rules requires 67 votes. So with only 52 Republican senators, McConnell can’t switch Senate rules. But he could set a new precedent.
See, the Senate also operates on precedent – a set of parliamentary criterion based on things that happened before. So, if you can’t change the rules, perhaps establish a new precedent. (emphasis in the original)
The Senate is currently split at 52 Republicans and 48 Democrats (yes, I know there are two “independents” in that Democrat count. They caucus with the Democrats, they count as Democrats). While Judge Gorsuch passed through to his seat on the Court of Appeals with a unanimous vote back in 2006, Democrats are still nursing a grudge over the Biden Rule. So, with over 40 votes, the Democrats can stop up the works by preventing cloture and engaging in a filibuster.
Cloture is the closure of debate and the forcing of a vote. The Senate instituted this rule in 1917, at the behest of President Woodrow Wilson, who was angry that the Senate was holding up American entry into World War I. Cloture requires a two-thirds majority to force a vote. This is the “60 vote threshold” that people keep talking about. It’s not for confirmation purposes – nominees only need a simple majority of votes (in the case of the 100 votes available in the Senate, 51 is a simple majority). Closing up debate means 60 Senators are ready for an up-or-down vote. Without cloture, no vote. That opens the door to the filibuster.
Senate Democrats, on a party line vote, changed precedent in 2013 in order to confirm President Obama’s appointees – the first use of the “nuclear option.”
Democrats used a rare parliamentary move to change the rules so that federal judicial nominees and executive-office appointments can advance to confirmation votes by a simple majority of senators, rather than the 60-vote supermajority that has been the standard for nearly four decades.
The immediate rationale for the move was to allow the confirmation of three picks by President Obama to the U.S. Court of Appeals for the District of Columbia Circuit — the most recent examples of what Democrats have long considered unreasonably partisan obstruction by Republicans.
In the long term, the rule change represents a substantial power shift in a chamber that for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world. Now, a president whose party holds the majority in the Senate is virtually assured of having his nominees approved, with far less opportunity for political obstruction.
Let all take a moment to recognize the person responsible.
Thanks to all of you who encouraged me to consider filibuster reform. It had to be done.
— Senator Harry Reid (@SenatorReid) November 21, 2013
Of course, the Democrats’ argument is that this rule change didn’t apply to Supreme Court nominees… just all the other ones. But the counter-argument is, why should the Supreme Court be singled out?
There are legitimate reasons for why the Supreme Court is considered differently – we are talking about lifetime appointments, after all – but the Democrats opened the door, and then threw themselves a party over it.
Previous majorities had threatened to upend filibuster rules in this manner, but relying on a simple majority vote had been used only for relatively minor procedural changes to how amendments were handled, never to eliminate the supermajority requirement altogether. Before Thursday, the standard precedent was that major rule changes needed a two-thirds majority. The change was so significant that Reid and his leadership team held a victory party with liberal activists afterward in a room just off the Senate floor.
And they were warned that karma was going to turn around and bite them in the butt someday.
Republicans said the way Democrats upended the rules will result in fallout for years. “It’s another raw exercise of political power to permit the majority to do anything it wants whenever it wants to do it,” Sen. Lamar Alexander (Tenn.), the GOP’s parliamentary expert, told reporters.
Republicans vowed to reciprocate if they reclaim the majority.
“Democrats won’t be in power in perpetuity,” said Sen. Richard C. Shelby (Ala.), a 27-year member. “This is a mistake — a big one for the long run. Maybe not for the short run. Short-term gains, but I think it changes the Senate tremendously in a bad way.”
But the Democrats assumed two things:
1) Hillary Clinton would be elected president, and
2) The Republicans would play nice and not play hardball the way that they did.
The first assumption died on November 8, 2016. The second one will probably be dead by the end of this week. It might play out something like this:
Let’s say Gorsuch fails to get 60 votes to end the filibuster Thursday. That’s where McConnell trips the nuclear wire. From a procedural standpoint, the Senate must be in what’s called a “non-debatable” posture. In other words, a failed cloture vote is just that. There’s no more debate. This parliamentary cul-de-sac is important because it’s practically the only procedural locus where McConnell could initiate the nuclear option. Any other parliamentary disposition prevents McConnell from going nuclear. But this unique place – following a failed cloture vote – is practically throbbing with political isotopes.
McConnell could switch his vote to halt debate so he winds up on the “prevailing side” of the cloture vote. In other words, the Democrats won. The “nay” side prevailed. By briefly siding with the Democrats since they won that round, grants McConnell the right to demand a revote on that same issue.
This is where McConnell lights the fuse.
All McConnell must do is make a point of order that the Senate only needs a simple majority (51 votes) to end debate on a Supreme Court nominee. Naturally, whichever GOP senator is presiding over the chamber would rule against McConnell. After all, that’s not the precedent. But McConnell would then appeal that ruling, forcing another vote. At that stage, the Senate is voting to sustain the ruling of the presiding officer. But if 51 senators vote no, the Senate has rebuked the chair’s ruling and set a new precedent. Only 51 yeas are then necessary to break a filibuster on a Supreme Court nominee.
That is the nuclear option.
Cue the Democrat freakout if this happens. The fact that they have no one to blame but themselves won’t even make a blip on their irony meters. Even though they acknowledge that Judge Gorsuch is impeccably qualified, and he got unanimous confirmation before, and that their opposition to him is nothing but sour grapes and grandstanding, it looks like it’s too late to appeal to the GOP’s sense of honor in protecting the rights of the minority party in the Senate. Not when they were so royally screwed over in 2013, and then got to watch Harry Reid take a victory lap. Now, Harry Reid is retired, Mitch McConnell is the majority leader, and the Democrats are going to be eating the bitter fruit of his legacy.