Everything You Need To Know About The ‘Nuclear Option’ And Harry Reid’s Plan To Fix The Senate

— by Ian Millhiser

On Thursday, Senate Majority Leader Harry Reid (D-NV) took the first step to invoking the so-called “nuclear option,” a Senate procedure that will allow a majority of the Senate to effectively change its rules to limit widespread obstructionism by the minority. As the trigger for this reform involves seven executive branch nominees being held up by Senate Republican filibusters, the likely consequence of this round of rules reform will be to eliminate the minority’s ability to filibuster nominees to non-judicial jobs. Here’s what you need to know about the showdown in the Senate that will occur next week:

What Is The “Nuclear Option?”

Although the term “nuclear opinion” was embraced by its opponents in an effort to cast aspersions it — its supporters have at times preferred to call it the “constitutional option” or the “Byrd option” — this maneuver is deeply rooted in the Senate’s history. As an article published by the conservative Federalist Society explained in 2004, the basic mechanism was devised by Republicans in 1890 to defeat a Democratic filibuster of a bill permitting military intervention in southern states that prevented African-Americans from voting.

Under this 1890 plan, Sen. Nelson Aldrich (R-RI) proposed introducing a motion asserting that “[w]hen any bill, resolution, or other question shall have been under consideration for a considerable time, it shall be in order for any Senator to demand that debate thereon be closed.” Aldrich then envisioned a series of steps where the presiding officer of the Senate would reject the process proposed by his motion, and a simple majority of the Senate would reverse the presiding officer’s decision. Aldrich, however, never executed this plan because Democrats eventually caved and allowed a vote on the bill out of concerns that Aldrich would succeed.

More recently, in 1977, Senate Majority Leader Robert Byrd (D-WV) successfully used a similar process to prevent senators from forcing debate on amendments introduced purely for the purpose of delay. Under this maneuver, Byrd asked Vice President Walter Mondale, who was then presiding over the Senate, to rule that he was required to “take the initiative” to rule such dilatory amendments out of order. When Mondale sustained Byrd’s request, supporters of more delay appealed that decision, and Byrd led the Senate to table this appeal by a majority vote. Thus, Byrd effectively eliminated a mechanism allowing a minority of senators to prevent a vote on a matter the majority supports, just as Reid seeks to do now.

Indeed, in a memo provided to ThinkProgress, Sen. Jeff Merkley’s (D-OR) office identifies 17 additional times since Byrd originally executed this maneuver in 1977 when the Senate has changed its procedures by a majority vote. The most recent example occurred on October 6, 2011, when the Senate voted 51-48 that senators could not use “motions to suspend the rules in order to consider non-germane amendments post cloture” in order to delay a vote.

Wasn’t There A Big Fight Over This During The Bush Administration?

Yes. President George W. Bush nominated a number of unusually ideological judges to the federal appellate bench. As a Texas Supreme Court justice, for example, Judge Priscilla Owen took thousands of dollars worth of campaign donations from Enron, and then wrote an opinion reducing Enron’s taxes by $15 million. As Alabama’s Attorney General, Judge William Pryor defended handcuffing prisoners to a hitching post in the hot sun, and then making them remain there for up to seven hours with barely any water and no bathroom breaks. Judge Janice Rogers Brown compared liberalism to “slavery” and court decisions upholding the New Deal to a “socialist revolution.” Since joining the federal bench, she wrote an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. Democrats filibustered these nominees, and a handful of others.

Many Republicans who are now playing a key role in defending the filibuster labeled Democratic filibusters unconstitutional in 2005. Future Senate Minority Leader Mitch McConnell (R-KY) accused Democrats of wanting “to reinterpret the Constitution to require a supermajority for confirmation.” Future Senate Minority Whip John Cornyn (R-TX) labeled Democrats’ actions an “unconstitutional use of the filibuster.” Sen. Lamar Alexander (R-TN), who has since voted to filibuster several Obama nominees, declared that “I would never filibuster any President’s judicial nominee, period.”

The Democrats’ filibusters did not last very long, however, in the so-called Gang of 14 agreement, seven Democrats agreed to a near total surrender to Republican demands — agreeing to permit Owen, Pryor and Brown to be confirmed to federal appeals courts. As an added bonus for Republicans, this agreement left the filibuster intact, thus allowing them to turn it against President Obama.

But Wait, Didn’t Democrats Oppose The Nuclear Option In 2005?

They did, but circumstances have changed quite a bit since then. Democrats filibustered nominees like Owen, Pryor and Brown because they viewed them as uniquely offensive nominees justifying the use of unusual tactics. Republicans under Obama, by contrast, say that there are some jobs that they will confirm no one to, no matter who President Obama nominates. Many Democrats who still believe that the filibuster can exist if it is only used, in the words of the Gang of 14 agreement, in “extraordinary circumstances,” now see that filibusters are being used in extraordinarily ordinary circumstances. They believe this is a bridge too far.

If Republicans succeed in maintaining the filibuster, moreover, it will cripple much of the government’s ability to function and lead to severe consequences for many American workers and consumers. By refusing to confirm anyone to the National Labor Relations Board, Republicans will likely shut down nearly all of federal labor law. Without the NLRB,

there will be no one to enforce workers’ rights to join a union without intimidation from their employer. No one to enforce workers’ rights to join together to oppose abusive work conditions. And no one to make an employer actually bargain with a union. Without an NLRB to enforce the law, it may be possible for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.

Similarly, a Republican filibuster of Consumer Financial Protection Bureau Director Richard Cordary will likely shut down that agency’s new authority to regulate Wall Street. Anticipated filibusters of three nominees to the United States Court of Appeals for the District of Columbia Circuit will enable Republicans to strike numerous rules promulgated by the Obama Administration to protect workers, consumers and the environment. The filibuster is no longer being used to block unusually offensive nominees, it’s being used to hobble America’s ability to govern itself.

Beyond these specific examples, there can be no doubt that filibusters spiked significantly since McConnell took over at the Senate’s Republican leader. A common mechanism used to measure the frequency of filibusters is to count the number of “cloture motions” filed in a particular Congress — cloture motions are the mechanism used to attempt to break a filibuster. The number of such motions spiked massively the minute McConnell became Minority Leader:

Indeed, nearly 3 in 10 of all cloture motions filed in the history of the Senate were filed during McConnell’s reign as Minority Leader.

With respect to filibusters of executive branch nominees, the issue likely to be addressed next week, the data shows a similar spike in McConnell-led filibusters once President Obama took office:

Why Is This Happening Now?

In the past three years, Democrats twice agreed to minor rules changes that did little to quell McConnell’s tactics. This time, however, they appear likely to pursue meaningful reform. This shift is likely due to a pair of court decisions by Republican judges that created a looming crisis Senate Democrats can no longer ignore.

The reason why the NLRB is in danger of going dark, stripping away much of American labor law in the process, are two decisions joined by five Republican judges that effectively strip away President Obama’s power to fill these seats via a recess appointment. And, while there is no guarantee that the Supreme Court will uphold these decisions, the fact remains that there are five Republicans on the Supreme Court and only four Democrats.

If the NLRB goes dark, unscrupulous employers could do significant and irreversible damage to workers and the unions they rely upon to protect their livelihoods. Even if the Senate were eventually able to fill the open seats on the NLRB, the labor movement may never recover from the blow such employers could deal in the absence of an NLRB capable of enforcing federal law. Thus, the irony of the five Republican judges’ decisions stripping away much of the government’s ability to function is that it could ultimately have the opposite effect. Because Democrats no longer have the option to delay filibuster reform without risking permanent harms, robust reform is more likely today than it has ever been. And that will lead to a far more functional government than the one we have under Mitch McConnell’s preferred regime.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe.

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Can We Please Have Filibuster Reform Now?

FillibusterReform_180It was a shameful day when Republican senators, joined by four Democrats, blocked an up-or-down vote on a gun reform supported by 90 percent of Americans and 87 percent of gun owners. It was our best chance to pass any real common sense gun reform in the wake of Newtown. And it was killed by a filibuster.

But it was also a painful reminder that the fate of even modest reform on guns, like expanding background checks, was largely sealed in late January when a rare opportunity to fix the filibuster was killed by Majority Leader Harry Reid and a handful of Democratic senators.

Senator Dianne Feinstein, a passionate advocate for gun reform — including a ban on assault weapons and high capacity ammunition magazines — was one of those senators. So was Senator Joe Manchin, author of the compromise amendment that would have led to the historic Senate passage of expanded background checks for gun owners, had it been allowed an up-or-down vote on the floor.

Tell Majority Leader Reid and Sens. Feinstein and Manchin: You bear responsibility for the Senate’s shame in the wake of Newtown. Reconsider your position against reforming the filibuster and fixing our broken Senate.

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In late January, we faced our only chance until 2015 to fix the filibuster, but Senate Majority Leader Reid didn’t act boldly, as he did when he voted — despite his NRA rating — for gun reforms, including a ban on assault weapons. Neither did Sen. Feinstein, who represents the state of California where voters strongly support bills like immigration reform and gun violence legislation — that will live or die based on filibusters. Nor did Sen Manchin, who may not have imagined back in January that he would bravely lead a mini-revolt by a few moderate and conservative senators against corrupting influence of the NRA. Instead, these three senators helped consign the Senate to two more years of gridlock and ultimately to the demise of even the most modest of gun reforms in the wake of Newtown.

In the end of the fight to reform the filibuster, Sen. Reid agreed to a compromised bait-and-switch deal that he and Senate Minority Leader Mitch McConnell cynically called “filibuster reform,” but which we know did next to nothing to actually fix the filibuster.

It was an epic failure and was the second time in a row Sen. Reid has sold out the American electorate by striking a bad deal with Sen. McConnell instead of pushing for strong filibuster reform when he had the chance.

Had Sen. Reid showed leadership or had hold-out senators like Feinstein and Manchin joined the effort, we could have secured the votes to pass real filibuster reform.

Tell Majority Leader Reid and Sens. Feinstein and Manchin: You can prevent special interests like the NRA from overriding the will of 87 percent of the American people in the future by reconsidering your decision to kill filibuster reform.

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CREDO members helped lead the way in pushing the Senate to fix the filibuster with 212,000 signing petitions and over 14,600 reporting calls to the Senate. In addition to that pressure, dozens of CREDO members met with Senate staffers in 10 constituent meetings we organized on this issue.

When we reported back to our members after Senator Reid killed real reform we wrote:

It was George W. Bush who said, “Fool me once, shame on — shame on you. Fool me — you can’t get fooled again.”

It looks like Sen. Reid got fooled again. But sadly it is the American people who are going to pay the price, so we must recommit ourselves to continuing this fight.

With the failure of the background checks bill it’s clear that it is the American people who are going to pay the price — and they will pay it with their lives.

Sen. Feinstein urged her fellow senators to “show some guts” when her ban on assault weapons and high capacity ammunition magazines failed in the Senate.

But what will truly fix the senate is if senators like Feinstein and Manchin, and Majority Leader Reid, show bold leadership and finally pass the reforms needed to end the 60-vote supermajority required to pass any bill and get the Senate working again.

THAT, Sen. Reid, is NOT Filibuster Reform!

Yesterday, as we faced our ONLY chance until 2015 to fix the filibuster, Senate Majority Leader Harry Reid did NOT act boldly. Instead, he consigned the Senate, and the American people as a whole, to two more years of continued crippling gridlock.

Rather than pushing for real reform, Sen. Reid agreed to a compromised “bait-and-switch” deal that he and Senate Minority Leader Mitch McConnell may call "filibuster reform," but which we all know will do next to nothing to actually fix misuse of the filibuster.  S.Res.16, the standing rules for the 113th session of the Senate, not only didn’t fix the filibuster problem (i.e., 60 votes will still be required to pass even the most routine bill), but Sen. Reid gave away the shop by agreeing to give the GOP opportunities to add TWO “poison pill” amendments to each of those bills managing to make it to the floor for debate and vote.  How is that progress?  It’s like taking one step forward to make it slightly easier to get judicial and cabinet appointments processed in a more timely fashion, only to take 10 steps backward on dealing with routine and necessary business.

As Senator Reid is fond of saying himself, “let’s be crystal clear” about this issue.  Senator Reid could have secured the votes to pass a stronger measure had he chosen to lead the way.  We all clearly heard him boast on the media that he actually had the 51 votes he needed.  Senators Merkley and Udall showed tremendous leadership in educating their fellow senators and the public about the need to fix the Senate, and they offered concrete proposals to do so.  But, Sen. Reid struck yet another “hand shake” deal with Sen. McConnell who’s probably still laughing to this moment at Senator Reid’s naivety.  One needs to ask: “why did he throw those votes under the bus?”

What’s that old phrase?  “Fool me once, shame on you — Fool me twice —shame on me?”  When is Senator Reid going to realize that Senator McConnell has a hidden agenda and that his “word” cannot be trusted?  This is now the second session in a row Sen. Reid has sold out his fellow Democrats by striking a bad deal with Sen. McConnell.  We desperately needed him to deliver strong filibuster reform, and again, he didn’t.  Sen. Reid is treading on thin ice as he has now “fooled us twice.” We’ll be taking a serious look at how the 113th Congress unfolds and whether his “compromise” will make matters better, or worse, for the American people as a whole.