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October 07, 2011 8:00 AM Defining the ‘nuclear option’ down

By Steve Benen

For several years, the “nuclear option” has had a fairly specific meaning. The strategy is procedurally complicated, but the gambit is about finding a way around Senate Rule 22, which says 60 votes are needed to end debate, and 67 votes are needed to change the rules of the chamber. The nuclear option is intended to change the rules with 50 votes — instead of 67 — to, in effect, make filibusters impossible.

There was a fair amount of drama in the Senate last night, but to call this the nuclear option is an exaggeration.

In a shocking development Thursday evening, Senate Majority Leader Harry Reid (D-Nev.) triggered a rarely used procedural option informally called the “nuclear option” to change the Senate rules.

Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of a bill.

Reid’s coup passed by a vote of 51-48, leaving Senate Republican Leader Mitch McConnell (R-Ky.) fuming.

McConnell, described as “visibly angry and shaken,” fumed to his colleagues, “We are fundamentally turning the Senate into the House. The minority’s out of business.” A GOP staffer added, “Just wait until they get into the minority!”

Senate Republicans’ larger argument about unilateral rule-changing is not without merit. Reid didn’t execute the nuclear option, but his move last night was, shall we say, inspired by the nuclear option. The actual nuclear option would constrain or eliminate filibusters — or at least certain kinds of filibusters — and Reid’s move doesn’t do this at all.

To appreciate what’s transpired, it’s worth taking a step back and considering what’s unfolded over the last several days. The Senate is poised to consider a bill on Chinese currency manipulation, but McConnell is desperate to play games with the American Jobs Act, trying to force it onto the China bill as an amendment. The goal is to get at least some Democrats to vote against the jobs bill, so Republicans can run around claiming “bipartisan opposition” to the proposal.

McConnell was so desperate to pursue this, he was poised to rely on a rarely-used Senate tactic that would have required a two-thirds majority to pass the American Jobs Act. Dems would have voted against the stunt en masse, well in advance of the actual vote on the jobs bill next week, allowing GOP members to claim Senate Democrats were responsible for voting down the bill, even though that wouldn’t really be true.

Reid decided last night to end the GOP game, using a ruling from the chair to lower the boom — if a bill has overcome a filibuster on the motion to proceed, and then overcome another filibuster on the floor before a final vote, the minority can’t engage in another de facto filibuster with amendment stunts. David Waldman does a nice job explaining this in more detail.

Is there a concern among Democrats that this will come back to haunt them when there’s a Republican majority? As a practical matter, Dems don’t much care about ending this particular practice, since bills can and will still be blocked by filibusters. The larger concern is over the precedent — as Brian Beutler noted, “[T]he only danger for Senate Democrats — as with setting any new precedent — is that an opportunistic future GOP majority will seize upon what happened Thursday as an excuse to make much bigger, broader changes to parliamentary procedure, perhaps even nixing the filibuster.”

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

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  • FRP on October 07, 2011 8:11 AM:

    As long as anything is better than what we have , then this is better .
    Making Mitch McConnell upset makes Tennessee a better place to live . Everyone wants a good and decent Tennessee , so

    Cry Mitchee
    Cry cry
    Make your masters sad
    You're old enough to know better
    So Cry Mitchee cry cry

  • DAY on October 07, 2011 8:12 AM:

    I watched much of the machinations last night, but needed some excitement, so I went to You tube for some paint drying videos. . .

    Note: The Senate is STILL disfunctional.

  • SteveT on October 07, 2011 8:14 AM:

    Any Senate Democrat who thinks that the next Republican Senate majority will let them filibuster at the same rate that today's Republicans have is completely delusional.

    Today's Republicans have no sense of shame, no sense of fair play and no respect for tradition. Their only credo is "Just win, baby."

  • c u n d gulag on October 07, 2011 8:17 AM:

    It's a good thing David Broder's dead or we'd all be reading an article this morning about how partisan and uncivil the rude Harry Reid was to poor Mitch "Yertle the Anti-gay Gay Turtle" McConnell.

    And anyone remember the old cries or "UP OR DOWN VOTE?!?!"

    Yeah, I know - it's soooo yesterday...

    You might as well be screaming "54 40' Or Fight!"

    Actually, without a real, stand-up and deliver filibuster, it should be "51 Votes or STFU!"

  • jhm on October 07, 2011 8:18 AM:

    If the only danger is the elimination of the filibuster, than I for one say full steam ahead!

    It's truly amazing how the idea that a political party might be made accountable for their own policies is considered a fate not worth considering in the Senate.

  • Daniel Kim on October 07, 2011 8:20 AM:

    Why don't they simply lie about bipartisan opposition to the jobs bill? It's just as effective, and would take less time. If every Republican senator would just open their mouth and tell the same false story, it's just as good as actually *having* bipartisan opposition!

  • snowbird42 on October 07, 2011 8:23 AM:

    It is past time for the Dems to stop being timid and afraid of what the Reps might do. Harry Reid was great last night. Give them some of their own medicine!

  • Equal Opportunity Cynic on October 07, 2011 8:28 AM:

    Psssh, as though the next Republican majority is going to be bound by precedent anyway.

  • Napoleon on October 07, 2011 8:42 AM:

    This whole incident just proves what a complete incompetant Reid is, and in the larger picture the Dems are.

    So he waits what, 3 years into the Dems having a majority in the Senate, and after they have lost the house and it appears on the horizon that there is a pretty good chance they loose the Senate and NOW he decides to pull something like this on a bill that has no chance of passing the house, and it hands the Rep a ready made reason to completely do away with the filibuster in 15 months.

  • terra on October 07, 2011 8:45 AM:

    Republicans don't need to use anything Dems have done to make things run how they want them to. They are authoritarians fueled by corporate greed, and they will do anything it takes to enrich themselves and their friends. So to say that something Dems are doing might come back to haunt them is concern trolling of the highest order.

  • Tyro on October 07, 2011 8:46 AM:

    One thing I've learned is that there's no point is worrying about the "long term" consequences to the senate. Do what you need to do now. Fight against the procedures and rules that end up working against your interests later.

    But what took Reid so long?

  • delNorte on October 07, 2011 8:47 AM:

    Reid's coup passed by a vote of 51-48...

    So this is now the definition of a coup? No wonder why Republicans see Occupy Wall Street as un-American: I suppose they will call it a coup when the 99% actually starts getting their way.

    Last night's action was more like "counting coup": Among certain Native American peoples, a feat of bravery performed in battle, especially the touching of an enemy's body without causing injury.

  • Jordan on October 07, 2011 8:47 AM:

    I think people are downplaying this move too much. What happened is that the Senate shrugged off one of its own rules with a simple majority vote. They didn't change the rules, they didn't abolish Rule 22 or otherwise end the filibuster. But this is the exact same maneuver that can & probably will be used to make those changes in the future.

    The Senate is basically just a vote away from majority rule. (Course, it always has been, but the gentleman's agreement thus far has kept them from acting on the fact that the constitutional option is always available.)

  • kevo on October 07, 2011 8:47 AM:

    My take away? McConnell's a sick puppy! -Kevo

  • Trollop on October 07, 2011 8:49 AM:

    "Just wait until they get in the minority"

    Why exactly? Are things going to get worse then Cecil? That's a laugh!

    It's nice to hear the old homo-turtle-human(?)-hybrid is "visibly shaken"! I'll bet his turtle-facial features didn't waiver though!

  • TT on October 07, 2011 8:56 AM:

    Anyone who points to last night as the reason McConnell will institute the nuclear option in January 2013 should the GOP sweep Congress and the WH simply does not understand the modern Republican Party.

  • SYSPROG on October 07, 2011 9:04 AM:

    Good for Reid. If you think THIS will be the deciding point of what the Republicans will do, then I have a bridge to sell you. The 'thugs have been talking 'reconciliation' to pass bills. Remember when THAT was the worst thing to happen during the ACA vote? C'mon. The Republicans simply do not care what ANYONE thinks. 'Visibly shaken'? Good. Maybe they can see we are tired of their crap.

  • T2 on October 07, 2011 9:16 AM:

    the thing is, if the Dems LEAD, and if we can pass some legislation that actually helps the economy and nation in spite of GOP opposition, they won't lose the Senate. IF the Senate Dems want to worry about losing their job/gov't paycheck more than helping the nation....well they should get voted out. Hooray for Harry.

  • Josef K on October 07, 2011 9:18 AM:

    I'm lightly heartened by this move, although I do see the intrinsic danger of the precedent. I suppose this could prompt a change in the Senate rules by normal channels in the next session (provided they're all still alive by then), or it could be the Senate Democrats will think they can still treat this as a card game where the Republicans won't cheat.

    Let's see actual legislation come out of it, then I'll be more encouraged.

  • Chris on October 07, 2011 9:23 AM:

    Senate Dems needn't worry about what Republicans might do when if and when Republicans control the senate. Republicans don't care abot precedent, don't need precedent, and will do whatever it takes if and when they takeover.

  • FlipYrWhig on October 07, 2011 9:27 AM:

    Oh noes, not the filibuster! However shall we go on without an arcane piece of bullshit that inhibits an institution full of dumbasses from doing its dumbass job!

  • r on October 07, 2011 9:52 AM:

    >Any Senate Democrat who thinks that the next Republican Senate majority will let them filibuster at the same rate that today's Republicans have is completely delusional.

    DING DING DING!

    Dems are too stupid to live.

  • Herschel on October 07, 2011 10:03 AM:

    60 votes are needed to end debate, and 67 votes are needed to change the rules of the chamber.
    Actually, 60 votes are needed to end debate, assuming every Senate seat is filled, but to end debate on a measure to change the Senate rules, two-thirds of Senators present and voting must agree, not necessarily 67.

  • jjm on October 07, 2011 10:17 AM:

    I, for one, am completely delighted by this move.

    Who died and made the Senate rules into the Constitution?

    It's ludicrous to have rigid rules that long time inhabitants of the Congress can twist to their advantage while critical issues lie on the back burner.

    Maybe Reid can use this or other manoeuvres to get Cordray actually confirmed, get the AJA passed and finally do immigration reform: all on Obama's agenda.

  • Luke Coley on October 07, 2011 10:23 AM:

    The filibuster, in all its manifestations, should have been abolished years ago anyway. The Senate will never be like the House, because of the differences in the ways members of the two bodies are elected.
    Democrats shouldn't fear the abolition of the filibuster, concerned about being in the minority. The use of the filibuster has become so completely contrary to the Constitution that its abolition would be a welcome development. A minority without the filibuster will simply have to make its case more directly to the people, something that should be considered welcome by any American.

  • OKDem on October 07, 2011 10:35 AM:

    Could Reid be looking at approval ratings of congressional Rethugnicans at 12% and the likelihood of several viable Rethugnicans replaced with even more thuggish Teabaggers [Luger, Snowe, Corker, Open Arizona, Open Texas], Brown as toast in MA and Liberman replaced with a real Democrat?

    Conventional wisdom, which is only conventional but seldom wise, says the Democrats will lose the Senate. The way things are shaping up, it is more likely that the net is -1 to +3 Democratic.

    In other words, Reid may have decided that another Republican Senate may not exist in his lifetime and maybe not his children's lifetime.

  • Hyde on October 07, 2011 12:10 PM:

    "...an opportunistic future GOP majority will seize upon what happened Thursday as an excuse to make much bigger, broader changes to parliamentary procedure, perhaps even nixing the filibuster."

    I congratulate Brian Beutler on his birth yesterday. Did anybody actually think the party currently rewriting election laws left and right would ever allow the filibuster to be used by a future Democratic minority at anywhere near the same levels we've seen the last 3 years, regardless of this alleged provocation?

  • Anonymous on October 07, 2011 1:33 PM:

    [T]he only danger for Senate Democrats as with setting any new precedent is that an opportunistic future GOP majority will seize upon what happened Thursday as an excuse to make much bigger, broader changes to parliamentary procedure, perhaps even nixing the filibuster.

    So why don't the Democrtats grow a damn spine and do that NOW when it would have some damn USE!!!!

  • FRP on October 07, 2011 2:24 PM:

    A Republican Party that has over the last generation publicly positioned itself around endorsing the simple idea that they will not permit elected officials to function in representing the people who elected them . A Republican Party that as well as being defined by their various leaders spoken goals in both humiliating , and making elected opposition politicians suffer defeats heedless of the destruction of American infrastructure , and a well earned reputation of brinkmanship over trivialities . These are stated goals replacing representation of ordinary Americans , placing a priority of bitterness and rancour as objectives , and serving to focus the contrast of a Republican Party that is aligned against any and all reasonable effort of majority rule working for the will of the people . A Republican Party that has its members talking about how Americans cannot compete with Asians in manufacturing .
    I suppose you could frame the Republican Party's objectives more attractively , but I think you would lose the understanding that the main thrust of the Republican Party is a denial of the participation of Americans in the American government . A decline and vacuum of power that will be filled by something other than a representative republic . A change that will be unlikely to resemble what these "architects" of dissembling seem to assume , that their masters will need them after the revolution .

  • Anonymous on October 07, 2011 10:11 PM:

    If I understand it correctly, all that happened was that Sen. Reid appealed a ruling from the from the chair that the AJA COULD be attached to the Currency Bill as an amendment to the Senate Parliamentarian. That appeal was turned down and Sen. Reid did what ANY Majority Leader can do, assuming he has the votes, he asked for a vote on the amendment as being out of order. Such votes only require a simple majority.
    Heaven help us if the present batch of Republicans gain a majority in the Senate...

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