Finally, A Republican Idea That Democrats Can Agree On: The Nuclear Option

This is going to sound like a Washington insider story, but today marked perhaps the most significant change in how the United States Senate operates since Senate Rule XXII was implemented in 1975.  Most people I'm sure are not familiar with Senate Rule XXII, so perhaps a brief history of the Senate filibuster is in order.

The Senate has often been referred to the "world's greatest deliberative body" and the joke that usually follows is "with a heavy emphasis on the deliberative and not so much on the great."  Unlike the House of Representatives, which has, except for its very early history, always operated with great majority power - simple majorities set the rules governing debate on a bill and provide for passage (meaning that the party in power can pass any bill in less than an hour if it chooses to), the Senate has always had a huge respect for the rights of the minority.  The House is the fickle younger child, with its entire membership up for re-election every 2 years, the Senate is the older brother designed to check the pace of change, with only one third of its members changing out every 2 years and much slower rules for moving bills forward.

The early Senate debated for as long as people wanted to debate before voting.  There was an unwritten rule that Senators did not try to cut off debate but that Senators also did not hold up debate simply to delay a bill.

In 1919, the Senate passed the first version of Rule XXII, a rule that allowed two thirds of the Senators present to vote to cut off debate.  The first test of the new rule was in 1919 when the Senate debated the Treaty of Versailles and Woodrow Wilson's plan for the country to join the League of Nations, when an angry group of Senators, mostly of Irish and German descent, opposed the treaty.  Ironically, both passage of the treaty and the rules governing cloture at the time required a two-thirds vote, meaning that ending a filibuster required precisely the number of votes that ultimate passage would require.  While Senate Majority Leader Henry Cabot Lodge attempted several times to broker a compromise to the treaty that added conditions limiting the power of the League to declare war.  Ultimately, Lodge was unable to broker a deal, successfully invoking cloture but failing in the vote on the treaty.

Over the next 56 years, the filibuster was used sparingly.  While the bar was high to cut off debate, with two thirds of the Senators present required to end debate, the rules also required that the opposition continue to debate the bill while the filibuster was going on - in other words, someone had to be on the Senate floor the whole time talking about the bill at hand.  The number of cloture votes during that time period was less than 20 (the exact number, I am not sure of, as several different sources have different numbers, but all are less than 20.)  Its most famous use was in 1964, when a block of Southern Democrats, led by Senator Strom Thurmond of South Carolina (Strom was a Democrat before he switched parties in 1966, although he had supported Barry Goldwater over Lyndon Johnson in 1964, largely because of his opposition to civil rights), filibustered the Civil Rights Act of 1964 for over 2 months before cloture was finally invoked in a 71-29 vote, only the second time cloture had been invoked since Rule XXII went into effect.

In 1975, Senate Democrats, who had won a large majority of 62, but still short of the two-thirds (67) votes required to break filibusters, feared that they would face constant filibusters from the Republican minority and sought to lower the bar for breaking a filibuster.  They brokered a deal with Republicans whereby the threshold for ending a filibuster would be reduced to three fifths, but in return, filibustering Senators would not need to actually speak to filibuster, but could simply force a procedural vote.  Also, the threshold of three fifths was three fifths of ALL Senators, not just three fifths of those present, meaning that 60 votes were always required to break a filibuster, regardless of the number in the chamber at the time.

Even with these rule changes, the filibuster was rarely employed.  From 1975 through 1992, there were only a few dozen filibusters and almost never for a Presidential appointee.  Democrats did not filibuster Clarence Thomas' controversial nomination in 1991, approving Thomas with a simple majority vote of 52-48.  While many people think Reagan Supreme Court Nominee Robert Bork was filibustered, he was not - he withdrew from the nominating process when it became clear he was not likely to win approval in the Senate outright.

In the 90s, Republicans began to pick up the pace of filibusters in opposition to proposed Clinton programs such as the pro-Union striker replacement ban.  Filibusters jumped up to 40 or 50 a year, but still, President nominees were almost never filibustered, even controversial picks like Surgeon General Joycelene Elders and Commerce Secretary Ron Brown were allowed through.

In the 2000s, Democrats started making more liberal use of the filibuster and started filibustering judicial nominees and controversial appointees such as UN Ambassador John Bolton.  Filibusters picked up to 60+ per year by the end of the Bush administration.  Republicans then had a bold idea dubbed the nuclear option, to end the allowed use of the filibuster for Presidential appointees.  The plan was that when Democrats filibustered a proposed Bush nominee, Republicans would raise a point of order as to how many votes were required to break a filibuster.  The Senate parlimentarian would correctly rule that 60 votes were required and Republicans would appeal his decision.  The loophole that they would use is that overcoming that ruling would only require a simple majority vote.  51 Republican Senators would then vote that only 51 votes are required to overcome a filibuster and voila!, the filibuster is over for nominees.  The plan can close to happening but was averted when Senator John McCain brokered a deal to end filibusters on some nominees while retaining filibusters on some other, more controversial picks.

Which brings us to the present day.  Republicans have upped the ante exponentially during the Obama administration.  Filibusters routinely number in the hundreds per year now - essentially the GOP filibusters everything that isn't going to already get 60 votes, making the super-majority an everyday requirement rather than a rare requirement for especially controversial bills.

And today, the Democrats stole the Republican idea and invoked the nuclear option on the nomination of Patricia Millett for the US District Court.  In one fell swoop, with a mere 52-48 vote, the filibuster has been ended forever for Presidential appointees.  The decision excludes Supreme Court nominees, which would be subject to a filibuster, although a similar trick could be employed, if desired, for a future controversial nominee.

Expect a land rush of cloture motions on nominations that the GOP has held up.  Also expect even more amped up acrimony in the Senate.  And definitely expect the GOP to up the ante if and when they win the majority back in the Senate.

So is this a good thing or a bad thing?

Unfortunately, I think it is a Sophie's choice.  The filibuster as a tool to protect minority rights and check the power of majority to make sweeping controversial changes strikes me as a prudent tool.  The filibuster as it is presently used has become untenable.  Perhaps noble traditions that require discretion in the exercise of power are too much to trust today's politicians with.  And perhaps the filibuster has done more harm than good - after all, blocking civil rights bills is hardly a great record to run on.

Regardless, the nomination filibuster is gone.  The rest of it may soon follow as I fully expect the GOP to basically refuse not to filibuster anything they can going forward.

Washington just gets more and more dysfunctional.  Is there any doubt that another budget and debt ceiling crisis is just around the corner?

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