You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

The Senate’s Option Wasn’t “Nuclear”

Last night there was a rule change in the U.S. Senate that Republicans wasted no time in branding a "nuclear option." The phrase "nuclear option" was coined by Sen. Trent Lott (R., Miss.) in 2003 to describe a parliamentary maneuver in which the Senate could eliminate or modify the filibuster by a simple majority vote. (Under the dread Rule 22, you need 67 votes to change existing filibuster rules. That's seven more than the 60 votes you need under Rule 22 to break a filibuster.) The maneuver to which Lott attached this incendiary phrase was, at that time, one that the then-Republican majority was considering to break a string of Democratic filibusters on judgeship confirmations. In the end, a compromise was reached and the nuclear option was averted. 

Virtually all Democrats and even many Republicans opposed using the nuclear option when the matter came to a head in 2005. But I was for it. (My only objection was that it wasn't sweeping enough; the GOP rule change would have ended filibusters only for judicial nominations.) I was for it not because I had any fondness for the conservative judges that President George W. Bush was trying to appoint, but because I felt that it had become way too easy for any Senate minority, Democrat or Republican, to bring the federal government to a standstill. After the Democrats retook the Senate in 2007 a lot of liberals found themselves agreeing with me. But now, instead of calling it the "nuclear option," which made the parliamentary move sound reckless and scary, they called it the "constitutional option."

Republicans, meanwhile, started using the phrase "nuclear option" not to express manly swagger, as they had before, but to make the filibuster rule change sound, well, reckless and scary. It had such excellent propaganda value that the GOP started it applying it not just to the proposed filibuster rule-change, but to any Senate rule change. When the Democrats considered using the Senate "reconciliation" process to pass health care reform, that was a "nuclear option." And when Senate Majority Leader Harry Reid made a rule change last night, and then got the change approved on a party-line majority vote, that was a "nuclear option" too. Only it wasn't. It was a good change, but it wasn't nearly as good a change as the nuclear option would be.

The China trade bill was on the floor—a bill, I should emphasize, that I'm not sure I'm even in favor of, so what follows is not a self-interested argument in which procedure is a smokescreen for some policy agenda. Republicans had tried to filibuster but Reid had the 60 votes necessary to invoke cloture. Let me say that again. The filibuster wasn't at issue. A filibuster had already been averted. (This will be on the test.) 

What Reid blocked was not the stupid majority-vote-denying filibuster, but a stupid post-filibuster majority-vote-denying maneuver that the Republicans were using to block the bill's passage. One I'd never even heard of. There are many such tactics, alas, and they are used more than ever before. What was once envisioned as a system of checks and balances has become so paralyzingly complex that Senate proceedings now resemble a Quaker meeting, where any decision that isn't unanimous gets tabled indefinitely.

It makes my head hurt to try to get this right, so I'll just quote an excellent description from Sarah Binder of the Brookings Institution:

Senate rules prohibit non-germane (unrelated) amendments on the Senate floor after cloture has been invoked on a bill. In other words, unless all senators consent, senators can only offer germane amendments once debate has been limited on a bill. McConnell and Reid appear to have been negotiating an agreement that would have allowed Republicans to offer seven non-germane amendments post-cloture. But then a GOP senator moved to suspend the rules (which requires a two-thirds vote) so that he could offer non-germane amendments, including at least one related to the president’s jobs bill. Frustrated with the Republicans’ tactics, Reid raised a point of order that the Republican motion was dilatory. Under Senate rules, dilatory motions are not in order once cloture has been invoked.  The parliamentarian advised the presiding officer to rule that the motion was in order, the presiding officer did just that, and a vote ensued on whether or not to sustain or overrule the chair’s ruling.  Appeals of the chair require only a majority vote to pass, and Reid mustered all the Democrats save Ben Nelson to vote to overturn the chair. In practice, this means that the Senate tonight set a new precedent, by which I mean a new interpretation of the Senate cloture rule:  Under cloture, a motion to suspend the rules to offer a non-germane amendment may now be declared dilatory.

To summarize: Reid and his Republican counterpart were negotiating an agreement allowing Republicans to offer seven non-germane amendments that would otherwise not have been allowed. Then a renegade GOP senator (I don't know who it was) tried to gum it all up with a stupid procedural request that wasn't going to be granted but that might in itself have led, according to Reid, to a stupid procedural filibuster. Reid told the renegade to piss off. The parliamentarian told Reid to piss off. Reid held a vote and a majority of the Senate told the parliamentarian and the renegade GOP senator to piss off, allowing the Senate to get back to the business of considering the China trade bill.

It may sound shocking that the Senate overrode its parliamentarian, but according to Binder this has happened in roughly one-quarter of the instances in which a parliamentarian's ruling (or, to get technical, the Senate chair's ruling at the parliamentarian's request) has been appealed. That doesn't sound very nuclear to me.

“We are fundamentally turning the Senate into the House,” McConnell complained.  “The minority’s out of business.” We should be so lucky.