Batten the hatches, open the history books and study up on parliamentary procedure. The marbled halls of the Russell, Dirksen and Hart Senate office buildings are once again filled with apocalyptic mutterings. The country must be put on notice! Tradition is at stake! The end is nigh! The Senate is about to go nuclear!
Or it may go nuclear. Or there are meetings planned to discuss the possibility of going nuclear. Or this is all just another fake controversy to create another fake crises to force the U.S. Senate to do the sort of stuff that it should be doing already, like talking across party lines and striking compromises that fill the government with enough people to actually run things.
First, let’s back up a little bit. Senate Majority Leader Harry Reid plans to meet Thursday with his fellow Democrats to discuss taking extraordinary measures—commonly called the “Nuclear Option”—that would do away with filibusters of some of the President’s nominees facing Senate confirmation. This would mean that for certain people, like Cabinet officials, a minority of senators would no longer be able to block up-or-down votes by symbolically saying they want to debate indefinitely.
That is a big deal, because for several generations there has been a clear precedent in the Senate: If you want to call a contentious vote, you need to gather together 60 senators to vote for that vote. If you can’t muster 60, then the 40 or so who object can prevent the majority from calling a vote. In effect, the Senate has long operated in exactly the way fourth graders are taught democracies don’t work: The minority can rule.
Once upon a time, this was only occasionally a problem, since only extraordinarily controversial bills, like the Civil Rights Act, ever faced a filibuster. But that has changed in recent decades. Now routine measures, like presidential nominees, face filibuster in the Senate. And it keeps getting worse. Democrats filibustered an extraordinary number of George W. Bush‘s judicial nominees, and Republicans have mostly returned the favor, throwing in a bunch of cabinet level jobs as well, including the recently appointed post of Director of the Consumer Financial Protection Agency.
So Reid is furious about this, in part because President Obama is furious, and Unions are furious, and major Democratic donors are furious. Or at least his aides and advisors say Reid is furious about this. Because the tricky thing with these sorts high-stakes, front-page, Senate standoffs is that little is ever what it seems to be.
Back in 2005, when Democrats were in the minority blocking nominees with filibusters, Republicans were furious, Karl Rove was furious, and they all threatened to evoke the nuclear option. But they apparently never meant it, because now that Republicans are in the minority, they are just fine doing what they once called “unconstitutional.”
Reid also finds himself twisted in knots. He has devoted his entire life to Senate, and he believes deeply in its rare role as a collaborative, slow-moving body, where “the Minority has a voice and the ability to check the power of the Majority.” Just eight years ago, on May 22, 2005, Reid said the following words about a Republican attempt to evoke the nuclear option with respect to judicial nominees, “That contempt for the rule of law and the law of rules will set a new precedent – an illegal precedent – that will always remain on the pages of Senate history – a precedent that will thrust us toward totally eliminating the filibuster in all Senate proceedings, a precedent that will eliminate the essential deliberative nature of the Senate – which was designed by the Founding Fathers to make it a counterbalance for the passions embodied in the House of Representatives.”
Two days earlier, he said on the Senate floor, “The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees “an up-or-down vote.”
Three days before that, before the C-Span cameras, he said, “The Senate in which I have spent the last 20 years of my life is a body in which the rules are sacrosanct. We may choose to amend the rules by two-thirds vote. We may enter into unanimous consent to waive the rules. But never before in the history of the Senate has a partisan majority sought to break the rules in order to achieve momentary political advantage.”
Jim Manley, a former aide to Reid who stood by the leader during those dark days of 2005, describes his old boss this way, “He loves the Senate as much as he loves his wife, and that’s a lot.” Reid also loves history. If you get him in the right mood, he can tell you chapter and verse about how just about every plot of land on the Las Vegas strip was developed. Back in 2003, he was so upset about the Republican plan to go nuclear that he seized the Senate floor for nine hours to read from his own book about the history of his hometown, Searchlight, Nev., called “The Camp That Didn’t Fail.”
So is Reid now willing to undo that legacy, to transform fundamentally the nature of the body he has given his life to? Again, people close to him say yes. “There is complete and utter hypocrisy on both sides, but, look, circumstances have changed since 2005,” said one Senate leadership aide on Wednesday.
Time will tell if this is true. Reid is planning a series of test votes next week on Obama’s nominees, and the fight will likely escalate into the summer. But if history is any guide, a more likely outcome is that Reid’s podium pounding over the nuclear option is little more than another act of hostage taking, which is pretty much the only way members of Congress can get anything done these days. In 2005, after Republicans threatened to go nuclear and unilaterally rewrite Senate rules, a group of moderate Senators came together to force a compromise that got most, but not all, of George W. Bush’s judicial nominees on the bench. This would not have happened without Republicans holding a gun to the head of Senate tradition. Now Reid is holding the gun, threatening to kill a part of the thing he loves most in the world.
The problem with hostage taking is that the threat of harm has to be credible for any ransom to be extracted. And so we will wait and watch, as one of the Senate’s great living leaders, threatens his own legacy of upholding the Senate’s ways, no doubt praying that he never has to make the fateful decision to pull the trigger.