In November of 2013, Senate Democrats, then in the majority, led by Sen. Harry Reid (Nev.) and goaded by the Republicans, made an historic mistake. They bowed to expediency and endorsed an interpretation of the Senate’s rules which would allow them to unilaterally confirm judicial nominations without minority input. They did this using what has been called “the nuclear option,” a questionable parliamentary ploy Vice President Biden, in 2005, called “a lie about a rule.”
This established the principle that a Senate majority could, in effect, sweep away any rule at any time. I wrote in the New York Times at the time, “In my judgment, the inevitable consequence of this action will be the elimination of the filibuster for all nominations and eventually for legislative matters.”
{mosads}Since the Republicans gained control of the Senate in January, we have seen repeated demands and growing pressure on Majority Leader Mitch McConnell (Ky.) to employ the nuclear option to impose the majority’s will on whatever issue at a given time is deemed sufficiently “consequential.”
The most recent example is a letter signed by 57 members of the House led by Rep. Lamar Smith (R-Texas) urging the Senate leadership to modify [Senate] rules… to approve some legislation…like the Iran nuclear deal [which] are so consequential that they demand revisions to the Senate’s procedures.”
Even House Majority Leader Kevin McCarthy (R-Calif.) weighed in. He said, “Inside the Senate you have to have 60 votes instead of a majority… That’s not in the Constitution. That’s a rule.”
Presidential candidate Gov. John Kasich (R-Ohio) declared, “I think they ought to go to the nuclear option in the United States Senate… There ought to be a vote, and there ought to be extreme measures taken …to achieve it. It is really critical.”
The demand for such legislative expediency has not been limited to this current issue. During the partisan impasse over President Obama’s immigration actions, many Republicans called for the use of nuclear option to overcome the Democrats’ filibuster. Republican presidential hopefuls Jeb Bush, Scott Walker, Rick Perry and Carly Fiorina indicated that they would support the use of the nuclear option to repeal Obamacare. The idea has also arisen as a way to accomplish the defunding of Planned Parenthood. Referring to such legislation, former GOP presidential candidate Gov. Scott Walker (Wis.) declared, “Why can’t we defund [Planned Parenthood] – put it in a spending bill. Forget about the 60-vote rule, there’s no reason — and the Constitution doesn’t call for 60 votes…Pass it with 51 votes, put it on the desk of the president.”
Fortunately, Article I Section 5 of the Constitution empowers only the Senate to change the Senate’s rules. Overwhelmingly senators, even those inclined to reform the rule, are opposed to destroying the legislative filibuster.
Of course, McConnell won’t. It would be silly to ravage rules which have stood for more than 200 years and have defined the Senate, just to cast symbolic votes to send legislation to the president which he will certainly veto and which the Congress will sustain.
The Senate’s first president, Founder John Adams warned in 1793, “Mankind will in time discover that unbridled majorities are as tyrannical and cruel as unlimited despots.” The design of the Senate for more than 200 years has protected the minority. The cornerstones of that protection are extended debate and the unfettered right to offer amendments. Destroying the legislative filibuster would permit majorities to do what majorities do, that is, take control. The Senate would, over time, become a majoritarian body like the House of Representatives where debate is limited and legislation is often considered with limited debate and no amendments in order.”
The real danger will arise in 2017 if either party controls the White House and the Senate majority. Would a Republican majority led by President Trump or President Fiorina hesitate to sweep away the Senate’s rules in order to repeal Obamacare? Would the Democrats who damaged the rules and created the precedent resist the temptation to further empower their newly elected president?
Perhaps it marks me as somewhat of a Pollyanna, but I continue to hope that Senate leaders of both parties will pull back from the slippery slope and protect the historic role of the Senate. I urge them to restore the damage done to the judicial nomination process by the nuclear option and work out sensible reforms to the filibuster rules, including eliminating the filibuster on the purely procedural motion to proceed.
Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl Levin (D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the recently published “Defending the Filibuster: The Soul of the Senate-Revised and Edited Edition.” He is an adjunct professor of international & public affairs and political science at the Watson Institute for International and Public Affairs at Brown University.