Nothing and Overreact: Is Eliminating the Filibuster the New "Nuclear Option" for the Senate?


I have two Axioms of Congress from my 14 years working on Capitol Hill.

  1. Congress does two things well: Nothing and Overreact; and
  2. In Congress the shoe will always be on the other foot.
The title of this series of columns is generated from Axiom One.  Axiom Two has inspired this edition.
The clearest case study demonstrating Axiom 2 involves what is called the “nuclear option.”
In November 2013, then-Majority Leader Harry Reid, a Democrat, used parliamentary tactics to effectively prevent filibusters of judicial nominees and cabinet appointments.  Reid’s maneuver instructed that debate would end – cloture would be invoked – with 51 votes – not 60 as had been a long-standing custom.  This play was thought to be so extreme and so dire to the traditions of the Senate, it was called the nuclear option.
The Republican Leader, Mitch McConnell, argued passionately against the 51-vote threshold and the nuclear option.
Notwithstanding the arguments of the defenders of Senate tradition, the 60-vote threshold was not carved in stone or spelled out in the Constitution.
The right or ability of any one Senator to speechify and to hold the floor, preventing a vote on the issue at hand or other issues is older than the Capitol building itself.  But it may have been Senator Henry Clay who first suggested in 1841 that the majority be permitted to cut off debate.  Clay’s idea failed and unlimited debate continued.  But in 1917 the Senate passed a rule requiring a 2/3rds vote to end debate.  Sixty-six votes ultimately proved too high a hurdle, so in 1975 the Senate amended its rule to require 60 to end debate (aka invoke cloture).
Since then, the Democrats and the Republicans – based on which party was in the majority – have taken turns arguing that 51 votes should be enough to end debate and then move on to the vote to confirm judges and Cabinet agency heads. Both parties – the one in the minority at the time – also took turns wringing their hands over this move which some suggested would end minority rights in the World’s Greatest Deliberative Body.
But Harry Reid finally activated the nuclear option in November 2013. His new rule required 51 votes to invoke cloture and end debate on a Cabinet or judicial nominee.   Debate on Supreme Court nominees still required 60 votes to be brought to a close.
Harry Reid had a good reason for going nuclear when he did.  The DC Circuit was split 4-4 with three vacancies and, five years into the Obama administration, the Democrats wanted control of that court in order to uphold Obama administration rulemaking and President Obama’s pen and phone actions.  After the rules change, 96 Obama-nominated judges were confirmed from December 2013 through 2014.
Democrats obviously thought that controlling the DC Circuit was worth the future prospect of the shoe being on the other foot.  I’m sure they thought, however, that they would be in the majority for two more years.  They did not expect to lose the Senate just a year after they triggered the nuclear option.  And they certainly did not expect that a Republican would be elected president in 2016.
In April 2017, Majority Leader McConnell changed the rules again – to include Supreme Court nominees.  Remember, that could be 50 senators and the vice president breaking the tie to end debate and move to a final vote.  
But someday the shoe will be on the other foot.  And a Democratic president and a Democratic Senate will confirm a justice to the Supreme Court with 51 votes. 
And in August, former Democratic Leader Harry Reid weighed in again writing an op-ed in the New York Times in favor of eliminating the filibuster and the 60 vote threshold for all legislation.  It’s true, more legislation could pass the Senate with a simple majority – some in our labor and workforce space including changes to the minimum wage and requirements around gender pay equity.  The merits of the legislative nuclear option deserve more attention and will get it in an upcoming column.  Stay tuned.