Former Senate Majority Leader Harry Reid moved toward using the nuclear option reluctantly, haltingly, and with baby steps that provided plenty of warning. After Barack Obama was elected president but before he was sworn in in January 2009, Senate Minority Leader Mitch McConnell adopted a strategy of total obstruction, declaring his number one priority to be making sure Obama was a one-term president. Throughout 2009 and 2010, McConnell used every available parliamentary trick to slow down the legislative agenda and the confirmation of Obama’s nominees. He was particularly aggressive on nominees for the federal courts. After the shellacking the Democrats took in the 2010 midterms, their majority in the Senate was markedly reduced and McConnell’s ability to obstruct was correspondingly enhanced.
In response, in 2011, Democratic Sens. Jeff Merkley of Oregon and Tom Udall of New Mexico began advocating that Reid use the nuclear option (which they called “the constitutional option”) in order to enact reforms to the filibuster rules. Although Reid opposed their plans, by October 2011, the pressure had grown substantial enough that Reid pushed through rule change with 51-48 vote. The impact of the change was modest because it only eliminated a post-cloture delaying motion and it only applied to the 2013-14 Congress, but he had changed the rules without a supermajority, thereby technically invoking the nuclear option. In context, however, he had gone nuclear in order to avoid going nuclear.
After President Obama disappointed McConnell by winning reelection in 2012, the Democrats began signaling that they would invoke the nuclear option in January 2013. The threat was credible enough to send many Republican senators scurrying into negotiation mode. In bipartisan votes of 78 to 16 and 86 to 9, the Senate rules were changed to curtail “the minority party’s right to filibuster a bill as long as each party has been permitted to present at least two amendments to the bill.” Reid acknowledged that the reforms didn’t go as far as many wanted them to, but tried to sound optimistic, “It is my hope that these reforms will help restore a spirit of comity and bipartisan cooperation.”
By July 2013, however, his optimism was dashed and he again prepared to invoke the nuclear option.
On July 16, the Senate Democratic majority came within hours of using the nuclear option to win confirmation of seven of President Obama’s long-delayed executive branch appointments. The confrontation was avoided when the White House withdrew two of the nominations in exchange for the other five being brought to the floor for a vote, where they were confirmed.
This was only a temporary respite. By November 21, 2013, Reid’s reluctance to go nuclear had hurt his credibility and he went forward. In a 52-48 vote, the rules were changed to eliminate the minority’s ability to block political appointments and all federal judges below the level of the Supreme Court.
This preserved the so-called “legislative filibuster” and was justified on the basis that the government cannot function if the minority prevents the majority from filling spots in the Executive Branch and on the courts. Many predicted that the Democrats would regret the change, and they later had plenty of reason to rue the fact that they couldn’t stop any of President Trump’s cabinet nominees. As for the Supreme Court, many predicted that the Republicans would not honor this restriction, and that turned out to be true as we just saw with the confirmations of Neil Gorsuch and Brett Kavanaugh.
I tell this story to put Mitch McConnell’s newest move to change the rules in their proper context. In an article published in Politico, McConnell explains why he is slashing the post-cloture debate time from 30 hours down to two hours “for all nominations except for Cabinet choices, nominees for the Supreme Court and appellate courts and some independent boards.”
The Senate has two rules that govern how things operate. One is unlimited debate, which means that senators can talk as long as they want, and the other is unanimous consent, which means that nothing can happen unless all 100 senators agree. The filibuster rule is meant to get around these constraints. For regular legislative business, the majority and minority leaders negotiate the parameters (including time for debate) and then ask the members of their caucuses to give their consent to their agreement. This is ordinarily granted without much fuss. If any senator objects, however, then the majority leader has to file a cloture motion to end debate. This is the filibuster vote, and in recent years there has been a 60-vote threshold. Once cloture is successfully invoked, which typically takes three days, the debate on a bill or nominee can begin, and the debate will be cut off after a definite period of time. For nominees, this has been 30 hours. McConnell used this very effectively when he was in the minority. By refusing to grant unanimous consent for almost all nominees, he forced Reid to repeatedly go through the cloture and debate process, thereby chewing up weeks and weeks of legislative time debating non-controversial people, leaving less time for the Senate to work on legislation.
Given this history, it’s a wonder that lightning didn’t strike McConnell when he wrote the following explaining his new rule change:
“Since January 2017, for the first time in memory, a minority has exploited procedure to systematically obstruct a president from staffing up his administration. This new, across-the-board obstruction is unfair to the president and, more importantly, to the American people. Left unchecked, it is guaranteed to create an unsustainable precedent that would see every future presidency of either party obstructed in the same mindless way. The Senate needs to restore normalcy. And this week, we will vote to do just that.”
What makes the nuclear option “nuclear” is that it violates the rules in order to change the rules. It should require a supermajority to change a rule, so using a mere majority to make it so a mere majority can prevail is not supposed to be permissible. In this case, McConnell is going nuclear to eliminate a problem that he invented. It was only because of McConnell’s willingness to abuse the spirit of the rules that Harry Reid eventually succumbed to pressure to fight back in the only way he could. Many people warned that as soon as Reid took one step down that road, it would open the floodgates to more and more changes to eliminate the minority party’s rights in the Senate. Others warned that the Republicans would make the same changes once they were in the same position, so it was foolish for Reid to hold off on the premise that he could preserve comity in the Senate. Both groups were correct.
McConnell was intent on breaking the traditional Senate, and his guiding star is only to do what gives him an advantage in whatever set of circumstances he finds himself.
This rule change isn’t such a big deal in itself. It only speeds up the process of confirming people who are going to confirmed anyway. But it’s galling that McConnell is willing to explain the change by arguing “Since January 2017, for the first time in memory, a minority has exploited procedure to systematically obstruct a president from staffing up his administration.”
A benevolent God would strike him dead for making a statement that egregiously self-serving and false.
