The nuclear option

THE NUCLEAR OPTION…. Craig Becker’s nomination to the National Labor Relations Board was held up in the Senate for 10 months. Yesterday, the nomination came to the floor and failed because “only” a majority of the Senate supported it.

After the vote, some senators were articulating a frustration that’s overdue — Republicans are undermining the American political process in ways no one could have imagined a generation ago. Judiciary Committee Chairman Pat Leahy (D-Vt.) said, “I’ve never seen anything like it,” and said it may be necessary to change the filibuster rules.

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) added, “I think it will either fall of its own weight — it should fall of its own weight — or it will fall after some massive conflict on the floor, which has happened in the past where there have been rulings from the chair that have led to reform.”

And speaking of the prospect of a “massive conflict on the floor,” now is probably a good time to talk in more detail about the “nuclear option.”

Lately, the Fox News crowd has been using the phrase to describe passing legislation through the reconciliation process. That’s silly — reconciliation has been used plenty of times, and it’s never been called this before.

So what is the “nuclear option”? It’s an idea Republicans came up with in 2005, when the GOP controlled the House, White House, and enjoyed a 55-vote majority in the Senate. Democrats were blocking consideration of some right-wing judicial nominees, and Sen. Trent Lott (R-Miss.), then chairman of the Senate Rules Committee, came up with something he called the “nuclear option.” (Republicans later scrambled to come up with a less-extreme label, but it was too late.)

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.

It’s possible, but it ain’t pretty.

Tim Noah recently explained how this would work in a piece that only oversimplifies matters a bit:

The first step in exercising the nuclear option, then, is for the president of the Senate (i.e., Vice President Joe Biden) to state, in effect, “Previous Congresses can’t tell this Congress what to do. Senate Rule 22 has no force because it was never agreed to by the current Senate.”

Biden would then state, “Under Article I, Section 5 of the Constitution, this current Senate may ‘determine the rules of its proceedings.’ I say we change Rule 22 to eliminate the filibuster.” Or modify it, if he wanted to opt for an intermediate reform such as a proposal by Sen. Tom Harkin, D-Iowa, to subject filibusters to a series of cloture votes that begin with a 60-vote requirement and gradually work their way down to a 51-vote requirement. Biden would then put the new rule to a simple-majority vote.

If 50 senators agreed, the existing filibuster rule would be no more, and the Senate could start functioning again like institutions in mature democracies should.

It could be done literally at any time. Today, for example, Harry Reid could bring back Becker’s NLRB nomination, and try to end debate. There would be fewer than 60 votes, prompting Reid to call a point of order arguing that the filibuster is unconstitutional. The presiding officer of the Senate, Joe Biden, would agree. Republicans would protest, prompting Reid to call for a vote to table the GOP appeal. If Republicans come up short of 51 votes, the Senate would give Becker an up-or-down vote and a new Senate precedent would be set.

So why not do this? For one thing, it would represent a radical abuse. The notion that the vice president could use his position to rewrite Senate rules has no precedent in American history, making this an extraordinary and unprecedented move.

Then again, we’ve never had a legislative dynamic in which a Senate minority refused to let the majority govern. Pulling the trigger on this would be an outrageous abuse responding to another outrageous abuse. Republicans broke the American political process, and this radical scheme may be necessary to set things right.

Also note, however, why this was called the “nuclear option” in the first place — Lott knew five years ago that Daschle & Co. would be so apoplectic about the scheme, they’d use every parliamentary procedure imaginable to bring the Senate to a complete halt. And since unanimous consent is practically a requirement in the Senate to turn the lights on in the morning, the minority could very well shut down the chamber, with or without Rule 22.

If Dems were to try the “nuclear option” now, chances are reasonably good that the already dysfunctional chamber may become even worse.

The question to consider is whether Democrats really have anything to lose at this point.