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L'America: What's the Nuclear Option in the Senate

2013-11-23 8 min read marco

I am not a Constitutional expert by any means, but I’ve been following this for a long time and here is my (potentially totally misleading and confusing) recap:

What Is the United States Senate?

OK, I’ll start at the basics. The United States Constitution provides for a bicameral system. There is a “lower” house, which is called House of Representatives. Its members represents geographical districts with roughly equal population, such that its composition is more or less representative of the general voting populace.

The “upper” house is called the Senate. It is composed of two members per State, called senators. While the two houses are completely different in composition, they have roughly equal powers. The only real difference is that the lower house (or just, the House) has exclusive rights to start fiscal legislation, and the upper house (or, the Senate) theoretically advises the President and his/her Administration.

This advising function ends up meaning that the Senate is required to confirm many of the President’s choices. This includes treaties, but also nominations to important functions in government (including the cabinet) and Federal Court appointments, including the Supreme Court.

What Is the Filibuster?

The senators bring forth motions and bills to the floor. These are discussed as long as required. When the senators are satisfied that the discussion is completed, they vote to end discussion and proceed with a vote. The procedural motion to close discussion is called “cloture.”

Invoking cloture should be a procedural move: senators should deny cloture only if they have something left to discuss, in which case it would be rude to stop the conversation. As a result, it takes (took) more members of the Senate to pass cloture than to pass the final bill.

How Did the Filibuster Change Over Time?

Now, if a member of the Senate wanted to continue talking about a bill, the Senate would typically not stop them. They could go on as long as they saw fit, until they exhausted themselves and the senators could vote for cloture.

At some point, someone figured out that talking day and night was a wonderful way of getting publicity. So they’d just do that. That wouldn’t have been a big problem, as long as it was limited to a few instances. But at some point the publicity generated begat more filibusters.

The problem with filibusters is that the Senators on both sides of the issue have to be present while it goes on. If one side leaves the room, the other side can outvote it – invoking cloture, or repealing whatever it was that the filibuster was against.

At some point, then, the Senators agreed it was all too much work, and the rules were changed such that nobody actually had to stay in the chambers. It was sufficient to say that you intended to filibuster a bill or motion to do the same as spending the night in the halls of Congress.

Who Started Filibuster Abuse of Judicial Nominations?

The Administration of George W. Bush found itself with both houses of Congress in their hands and a series of vacancies on the Federal Courts. The President named a series of judges to fill the posts, and the names did not please the Democratic minority.

Then Minority Speaker Harry Reid decided that he was going to block the nominations of all the appointees he didn’t like. He proceeded with a filibuster that held up the appointments for months. Finally, the President and the Senate Majority Leader had enough of it and threatened to remove the filibuster rule, the so-called Nuclear Option.

In the end, a group of senators (together enough to break the filibuster, and enough to pass the appointments) decided that neither side was right, and that a compromise had to be reached: the filibuster would stand as it was, but all but a few nominations would proceed to confirmation.

What Happened During the Obama Administration?

Once President Obama took office, he found himself with a supermajority in the Senate. That meant the Republicans didn’t have enough votes to even filibuster, and any attempts to do so could have been quashed. Unfortunately for the President, that power was ill-invested in the health care reform. While a reform of the health care system was direly needed, the country was much more concerned about jobs and the economy.

The result was that, after two years, the Republicans forced a giant shift in the electorate, gained a large majority in the House, and regained their “superminority” in the Senate. There, they started blocking the process en masse, using the only tool they had at hand, the filibuster.

Harry Reid and Mitch McConnell, respectively Majority and Minority leaders, played a game of cat and mouse with the filibuster. Reid continued threatening with the same Nuclear Option he had been threatened with four years prior. McConnell played chicken, caving in only when he sensed that Reid could get his Senate lined up for the change in rules.

You see, votes on the Senate rules generally do not require cloture, because there is no bill to discuss. So the Majority Leader can just bring the motion for a vote, and if he can get the majority, there is nothing the minority can do but wait for the next election.

Of particular interest to the Republicans were those decisions that had long-term effects. While cabinet posts and foreign posts come and go with the Administration, court appointments are typically for the lifetime of the appointee. As a result of a more and more polarized American political system, getting in the right man or woman when you get a chance means that you can get your political way for a very long time.

That was the political calculus in making John Roberts the Supreme Court Chief Justice: he was so young, he would be ruling for decades to come. Since he was made Chief Justice, there was nothing later Administrations could do to get the post removed from him.

So, when the time came to fill vacancies on the Federal Courts, McConnell stopped everything. There would be virtually no confirmations.

What’s the Current State?

The problem with the process followed by McConnell is that it has a built-in timer. Once the majority realizes its time is running out, it needs to make a change no matter how much it dislikes it. After all, any change that Harry Reid doesn’t make today is a change that Mitch McConnell can make tomorrow!

Since there are elections in 2014, and since those elections might bring a shift in the Senate majority, it was important to Reid to get the confirmations going. From a timing perspective, this was an ideal moment: the 2013 elections were over; the Obamacare web site catastrophe begged for a diversion; the holidays were looming and people were largely concerned with turkeys and presents. On the other hand, there is only another year until the next elections.

Harry Reid finally pulled the plug and made a decision: the rules were changed and from now on, confirmations of appointees to the Federal Courts will not require a majority of 60, but only of 51. He put in a fig leaf removing Supreme Court appointments from that rule change, but there is no current Supreme Court appointment in the making, and he’s got a chance to change that rule once the next appointment becomes a reality.

(On the other hand, I doubt that Mitch McConnell would hesitate much if he were to be Majority Leader in 2015.)

I expect confirmations to move quickly now, and the large number of vacant Federal Court positions to be filled quickly.

What’s the Fuss About?

The only part that is slightly odd is where the Republicans are making a huge stink about this rule change. It’s not that there is no reason to be upset – in abstract. The issue is that the Republicans were precisely the ones that were upset eight years ago, when the Democrats filibustered the Republican nominees.

This time around, there was no gang of senators that reached across the aisle to find a compromise, because the Senate has changed. But there is no doubt that, if that gang hadn’t come forward, the Republicans would have done exactly what the Democrats have done now.

And of course Democratic-leaning commentators have gleefully pointed out the hypocrisy of the Republicans who now decry the rule change as undemocratic, unconstitutional, dangerous, and unprecedented – all the while fishing out the same statesman going around the press circuit talking about how the filibuster was undemocratic, unconstitutional, dangerous, and unprecedented.

What’s Next?

The filibuster was a monster, and it’s good to see it gone. It was an abuse of an abuse of a procedural rule, and should have never become the stumbling block for so much activity.

At the same time, the abuse of the filibuster highlighted a few major problems, and those scream for attention:

  • Life tenure of Federal Court judges (including the Supreme Court) is an even greater monstrosity, if the judges end up being partisan – on either side. This is particularly terrible when the courts become the last functioning bulwark of civilization, as they have in America. Since they are nimble in composition and simple in rules, they can make decisions where the remaining gridlocked institutions are paralysed.
  • The degree of polarization in America has become frightening. Politicians (rightly) realized that they don’t have to govern, they just have to block the other side, to claim a win and be re-elected. That’s a problem that the electorate has to solve as a whole. The country needs to decide where it wants to go and what it wants to do.
  • The deficiencies in composition of the House and Senate are becoming more and more evident. In particular, the fixed size of Congressional districts has created an enormous and amorphous House, while the geographical anomalies of Senate seats (two per State, no matter how large or small, severely overrepresenting the East Coast) make the body once too removed from the people.