How bad would the nuclear option fallout be?

by Sarah Binder on May 20, 2013 · 2 comments

in Legislative Politics,Senate procedure

Following up my early morning nuclear option post …

I appreciate Jon Bernstein’s nuanced and thoughtful response on the credibility of minority party threats to go nuclear were the majority to employ the nuclear option.  He asks the critical question:  “After majority-imposed reform is imposed, does it makes sense to carry out that threat?”  Jon’s skepticism here is well-taken.  Still, it’s remarkable how few majorities have been willing to consider taking the gamble.  Frist and many of his fellow partisans in 2005 seemed ready, but they are nearly an historical anomaly.  I think it’s helpful to keep in mind that the GOP would not actually have to blow up every bridge to impose a steep cost on the majority party’s agenda.  With apologies for quoting at length, this is how we put it it back in 2007:

Why would the threat of minority obstruction out weigh the majority party’s threat to reform-by-ruling? The minority is not helpless. If the ruling is limited to judicial nominations, as former Majority Leader Frist insisted in 2005 that it would be, the minority could filibuster any other debatable measure in anticipation of a Republican move to bring up a controversial judicial nomination. They could object to routine unanimous consent requests, which would require the majority instead to adopt a routine motion or even force the majority to secure sixty votes to impose cloture. If used widely, such moves could radically slow Senate action on all matters, a majority leader’s worst nightmare. The minority’s leverage under existing Senate rules and practices seems to counter the majority’s technical ability to go nuclear by reinterpreting existing chamber rules via new precedents.

Hard to know for sure how much to discount a counter-threat from the GOP.

Also, Richard Arenberg—co-author, with retired Senate parliamentarian Bob Dove, of Defending the Filibuster: The Soul of the Senate—weighs in on the nuclear option here with some interesting detail and perspective.  I think his third point is worth highlighting in particular, as it reinforces questions about the precise set of parliamentary moves needed to go nuclear.  The CRS report that I mentioned in my previous post goes into nuanced detail on this matter.

{ 2 comments }

Brett Bellmore May 20, 2013 at 7:12 pm

“They could object to routine unanimous consent requests,”

They should be doing that in any case. Don’t they swear oaths to uphold the Constitution, which happens to require both houses to have quorums present to conduct business? What a disgusting state our Congress is in, when simply insisting on observing quorum requirements should be considers some kind of vicious threat?

Chaz May 22, 2013 at 6:03 am

If the minority adopts new obstructionist methods after their current favorite methods are neutered, that should just prompt the majority to adopt new rules to neuter those methods as well. Filibusters to delay general business could just prompt a total elimination of filibusters (as many demand already). Demands for roll call votes in place of unanimous consent can be neutralized by giving the president pro tem or his standin authority to call final votes at any time, and to choose which amendments are voted on. The only action which absolutely requires a vote is the passage of a bill. Once you’ve debated to the leadership’s satisfaction, you do a quorum check, then call votes on all your bills for the day, then go home. The end result is that whatever new nonsense the minority dreams up can be immediately neutralized, though generally with the side effect of centralizing power in the Senate majority leadership.

I would much prefer a system in which any representative or senator with a reasonable amount of support could introduce a bill and have it voted on even without the Majority Leader’s/Speaker’s support*, but that depends on all members behaving themselves and not abusing the rules. Given such abuse, a dictatorship of the Speaker is preferable to simply shutting down the Congress.

By the nature of the system defined in the Constitution, there is no way whatsoever in which the minority can block a determined majority from enacting its agenda.

*One reform which could help with this even in a strong speaker setup: I think there should be a system for a majority to force a vote on a bill by petition, to keep speakers and majority leaders from overstepping their role and constraining the agenda. This should require majority support so that it cannot be used for minority obstruction.

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