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Bring on the Nuclear Option!

Sometimes gridlock is good. Ninety-eight senators met in a rare, closed-door session on Monday night. A smaller group of senators, including the leaders of both parties, met separately afterwards. The goal of both sessions was to work out a compromise on a series of presidential nominations that Republicans have been blocking. By all accounts, the discussions were cordial and constructive. But the meetings are over now and, as of late Monday evening, no agreement is at hand.

Democrats still want up-or-down votes on seven key nominations, including appointments to run the National Labor Relations Board and a new consumer protection agency. Democrats also want to know that future nominations will get similar votes. Republicans have been saying no, although, according to one source familiar with negotiations, Minority Leader Mitch McConnell on late Monday evening “threw out the idea” of confirming the seven nominees as long as they could still filibuster future nominees. Majority Leader Harry Reid wouldn't take the deal, the source said.

Assuming that account is accurate, and unless those positions change in the next twelve hours, Reid on Tuesday morning will call for votes on the nominees. If and when Republicans launch their filibuster, Reid will then call for a change in Senate rules, so that a minority can no longer stop nomination votes. This “nuclear option” would represent a change in the way the Senate does business—although, in reality, it would be more of a restoration than a reform. And it’d be long overdue.

If you've followed this controversy—say, through the writings of people like Jonathan Bernstein, James Fallows, Ezra Klein, or Tim Noah—you know why. If not, here's the quick version. The filibuster, which allows a minority of senators to prevent the majority taking action, is not part of the Constitution. On the contrary, the men who wrote the constitution explicitly rejected such super-majority requirements except in a few specific circumstances (such as ratifying a treaty or removing a president from office). The filibuster is simply a rule that the Senate adopted, and is free to discard. Until relatively recently, senators used the option sparingly. But lately it’s become a mechanism for routine obstruction: Almost nothing can get past the Senate without 60 votes, and that includes nominations to run federal agencies.

Increased use of the filibuster traces back to the Republican Senate minority of the Clinton years and the Democratic Senate minority of the Bush years, but it’s been during the Obama Administration that the real transformation took place. Under McConnell's leadership, the filibuster has become a modern-day instrument of “nullification.” Republicans are using it to undermine laws—like those protecting consumers from banks, or guaranteeing workers the right to organize into unions—that they happen not to like. Thanks in part to a recent court ruling, rendering it effectively impossible for the president to appoint temporary agency heads unilterally, the Republican effort is succeeding. And it has grave implications for the people who depend on these laws, as my colleague Alec MacGillis reminded everybody today.

It also has grave implications for democracy. You’ve probably heard the expression, “elections have consequences.” I’d make the case that they don’t have enough consequences. If one party gets control of Congress, it should have the power to legislate—to pass bills and then be accountable for those actions at the next election. That makes the prospect of your party losing control of the Senate scarier, but that prospect should be scarier. When people vote one way or the other, those votes should translate to action—for better and for worse. It's why many of us were also calling to end the filibuster when Democrats were using it during the Bush Administration.

McConnell says he is furious about the change, and vows that it will change the Senate forever. Would that it were so. Reid has made clear he won’t try to adjust rules for filibustering legislation or judicial nominations. He simply wants up-or-down votes on presidential nominees for agencies. That’s not surprising. The filibuster has made life difficult for the present Democratic majority, but older-generation Democrats, like older-generation Republicans, still like it—in part because they can imagine a time when they might be in the minority and, as a result, take advantage of it. That Reid seems determined to push ahead with the nuclear option, despite such skittishness, tells you just how egregious McConnell’s use of the filibuster has become.

It also tells you something about Reid’s character, and not just because he appears to have united most of his fellow Democrats behind him. As my colleague Nate Cohn observed, Brian Schweitzer’s recent decision to eschew a run for Montana’s open senate seat makes Republican control of the Senate in 2015 a much more likely possibility. That would seem to give Reid plenty of reason to back off his threat. So far, at least, he hasn’t. And, as Greg Sargent noted on Monday, his caucus hasn’t budged either.

Of course, that could still change. The same source who told me about McConnell's offer said Reid was still open to alternatives. And plenty of senators are agitating for one, as dispatches from Sahil Kapur and David Weigel make clear. Among those who favor such an approach are John McCain and Carl Levin. I imagine they believe an agreement would promote the kind of respectful, civic-minded negotiation in which they’ve personally engaged over the years. It’s a lovely notion, but almost surely wrong. As Reid put it, the Senate is now a broken institution. The minority wields so much power that the majority can’t do anything at all. Reid’s nuclear option will change that situation only incrementally, but it would be a change for the better.

Update: Multiple outlets are now reporting like the two sides have reached an agreement. The Senate will vote on all the contested nominees, but Democrats will put forward two different nominees for the NLRB. Too Bad. Obama will get to staff his agencies, finally, but the filibuster rule for nominations will remain in place. More to come.

Jonathan Cohn is a senior editor at the New Republic. Follow him on twitter @CitizenCohn