Did the Senate Just Go Nuclear?

by Sarah Binder on October 7, 2011 · 9 comments

in Legislative Politics,Senate procedure

I sat down tonight to read a little of Mr. Speaker!, Jim Grant’s new, breezy biography of House Speaker Thomas Reed.  “Czar Reed” was the author of “Reed’s Rules”—the package of House rule changes that broke the back of minority party obstruction in the late 19th century.   But, alas, jarred by such headlines as  “Democrats Invoke ‘Nuclear Option’ in the Senate,” I put down Mr. Speaker and sat glued to C-Span for a recap of today’s Senate floor kerfuffle in which Majority Leader Harry Reid and Minority Leader Mitch McConnell sparred (somewhat) angrily over the Democrats’ move to quash Republican amendments to a pending currency manipulation bill.

What exactly happened? In brief (well, Senate-style brief), 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.  (If I’ve not quite nailed this down precisely, it’s because no one should try to disentangle Senate floor procedure after midnight.  Please do correct my errors!)

So…did Reid’s move tonight constitute “going nuclear,” as many reporters (or their editors) rushed to declare?  Did this rise to the threat in 2005 that a GOP majority would set a new precedent that Rule 22 would no longer apply to judicial nominations—thus banning the filibuster of judicial nominees?

I think the “nuclear” label overstates what happened tonight.  The Senate did move by majority vote to set a new precedent, but this is hardly a revolutionary act.  The closest I can come to good data (recall, after midnight) on appeals of the presiding officer comes from this conference paper by Chris Den Hartog and Nate Monroe (see also their new book).  For the postwar period, they show that the presiding officer is overruled roughly a quarter of the time his/her rulings are appealed.  Without breaking down the rulings, it would be hard to judge whether any of the Senate’s decisions set new precedents that limited the rights of individual senators on the Senate floor.  But my point is simply that the Senate does periodically move by majority vote to establish new ways of doing business—even when that path is at odds with the parliamentarian’s reading of precedent.  (On the broader politics of such “reform by ruling,” see Wawro and Schickler’s filibuster book or my work on the nuclear option with Steve Smith and Tony Madonna.  See also Steve’s Brookings paper on the Senate’s broader struggles with legislating.)

More generally, I think it’s important to keep in mind that the trend since the 1970s has been the gradual tightening of post-cloture practices, such as limiting the time for post-cloture debate and enhancing the ability of the Senate to prevent back-door “post-cloture” filibusters.  I suspect that from Senator Reid’s perspective, clamping down on efforts to offer non-germane amendments post-cloture was consistent with this general pattern of trying to make the Senate hew more closely to the intent of the cloture rule.   Of course, from Senator McConnell’s perspective, the move was a violation of Reid’s commitment at the start of the Congress to open up amending opportunities for the minority party.  “We are fundamentally turning the Senate into the House,” said McConnell.  “The minority’s out of business.”

Judging from Reid’s comments at the end of the day, I wouldn’t be surprised if the leaders attempt another procedural handshake—with the majority perhaps backing off tonight’s ruling.  Regardless, I doubt that the Senate minority party is really out of business.

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