Let’s Get Nuclear (and I’m not talking about Iran)

By: Brian Bayne

Throughout Washington, and the rest of the US for that matter, there seems to be acquiescence to the idea that Congress simply is unable to get anything done.  Congress’ approval rating has dropped to under ten percent and has been one of the least productive Congresses in recent history.  However, it is not simply that this Congress is not passing legislation; the Senate has also been unable to approve presidential appointments.  Currently there are 186 presidentially appointed nominees that have not yet been confirmed by the Senate; 53 of which are pending federal judges.  What is the reason for all these vacancies? Well, you can partially blame the filibuster.  In fact, the filibuster had created so much gridlock, especially in the area of confirmation hearings, that the Senate did the unthinkable, reform the filibuster rule.

The filibuster, the popular Senate procedural tool romanticized by Mr. Smith Goes to Washington, has its legal basis in Rule XXII of the Standing Rules of the Senate.  This rule establishes a cloture mechanism that allows a three-fifths vote of the Senate to end a debate on the floor.  Without a three-fifths vote, a Senator (or group of Senators) is allowed to continuously talk and thus hold up a vote on a given issue.  The filibuster has been used many times to hold up legislation.  The longest filibuster lasted for 24 hours and 18 minutes.  However, because of the widely held belief that the actual performance of a filibuster wastes valuable time, generally the mere threat of a filibuster is enough to stop legislation, or a nomination, from being debated on the floor.  Further, if the majority party does not secure the 60 votes required for a cloture vote, they will often not bring an issue to the floor in order to avoid being filibustered.  The requirement of 60 votes needed for cloture and fear of the filibuster has frozen the Senate, and is the reason the Democratic Party chose change the rule.

Prior to the change, calling for reform in the filibuster rules had become commonplace in the Senate and had occurred several times over the past ten years.  Most recently, such a call was made by Junior Senator Elizabeth Warren.  Her call to reform the filibuster rule is in response to the Republican Party’s obstruction in the nomination of three federal judges nominated to fill vacant seats on the Circuit Court of Appeals for the District of Columbia.  In a recent floor statement Warren said: “if Republicans continue to filibuster these highly qualified nominees for no reason other than to nullify the president’s constitutional authority, then senators not only have the right to change the filibuster, senators have a duty to change the filibuster rules.”  Because no deal was reached between Democrats and Republicans on these judicial nominees, the Democratic party opted to changed the filibuster rules; something that is harder to do than it sounds.

The least controversial way to change a Senate rule is through a traditional rule change vote.  However, the cloture threshold for debate over a rule change is a two‑thirds majority (that’s sixty-seven votes for those keeping score at home); an amount even higher than the 60 votes needed for normal cloture.  It is very unlikely that this would happen in today’s hyper-partisan political landscape because the result of altering the filibuster rule is the weakening of the minority party.  A more controversial method, which was used by the Democrats and had been threatened on multiple prior occasions, is referred to as the nuclear option.  This option allows a party to unilaterally alter the senate rules with only a simple majority vote.  The option is exercised by raising a point of order asking the presiding officer of the Senate to make a ruling on the Senate rules.  The presiding officer would then change the current cloture rules followed by a vote to uphold the ruling; this ruling would only require a simple majority to be upheld.

The rule change that the Democratic Party chose to implement was lowering the cloture requirement for confirmation hearings, outside of those to the Supreme Court, to a simple majority. This move, however, is risky because it alters the way the Senate operates.  While it may be good for the Democrats in the short term, it will likely come back to bite them in the future when there is a Republican controlled Senate.  The Democrats need not look far into the past to remember when they were the ones obstructing a Republican President’s nominations.  Further, such unilateral action burns any remaining bridges that may exist between the two parties in the Senate.

While there were a lot of risks involved in altering the Senate rules, it may have been a risk worth taking.  The president should be able to fill vacancies within the executive branch and the courts with qualified candidates without having to jump through partisan hoops.  The role of the Senate’s approval power should be to ensure that the nominees are qualified.  It is a shame that a traditional rule change was not politically possible, but it is important to note that this unilateral change will likely affect both parties equally in the long run.

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