Senate majority leader Harry Reid and 51 of his Democratic colleagues on Thursday changed how the chamber considers Executive Branch and most Judicial Branch nominees. But the ramifications of the action go well beyond the Senate’s advice-and-consent powers.
The vote was a dramatic reaction to a dramatic increase in filibusters that could affect everything from carbon regulations to the implementation of the Dodd-Frank financial-reform bill. The move also signals a major shift in the Senate, as it becomes nastier and more effective, like the majority-driven House.
The Senate has already been moving in the direction of the lower chamber, as long-term Republican Senators like Indiana’s Dick Lugar and Utah’s Bob Bennett have been pushed out by the Tea Party, and some long-serving Democrats — like West Virginia’s Robert Bryd, Massachusetts’ Ted Kennedy and Delaware’s Joe Biden — have been replaced. Remaining party elders, including Reid and minority leader Mitch McConnell, have moved toward their respective political fringes.
“It’s just as ideologically divided [as the House, and like that chamber] its members think about re-election all the time,” says Tom Mann, a congressional scholar at the Brookings Institution.
The new move is historic because it goes well beyond lowering the threshold from 60 Senators to a simple majority on all presidential appointments and nominations, except those to the Supreme Court. Reid acted outside the formal rulemaking process, leading his colleagues to overrule the Senate president in the middle of a contentious debate. Reid thus created a new precedent in which a simple majority can dispense with Senate rules on any vote, including legislation covering any aspect of life in America.
Three Democrats — Senators Carl Levin of Michigan, Joe Manchin of West Virginia and Mark Pryor of Arkansas — voted with every Republican against Reid’s procedure, citing the dangerous precedent it set.
Pryor bemoaned the simple-majority move, known as the “nuclear option.” The Senate, he said on the chamber floor, is “the only place where the minority is guaranteed a voice.”
“With all due respect to our colleagues in the House, you don’t see law being made there,” he added. “They come out of their rules committee, and it’s all pretty much set up and they at least tend to vote party-line, party-line, party-line, done.”
Levin expressed concern that the Democrats’ action will snowball into areas outside nominations.
“This precedent is going to be used, I fear, to change the rules on consideration of legislation,” said Levin. “And down the road — we don’t know how far down the road; we never know that in a democracy — but, down the road, the hard-won protections and benefits for our people’s health and welfare will be lost.”
The minority party was outraged. Senator John McCain, the Arizona Republican who attempted to broker a deal with Reid to avert this outcome, said he was “angry” and “upset” and ripped Reid for opposing the “nuclear option” in 2005. Reid tanked the offer because McCain did not grant a vote on all three of the President’s nominees to the D.C. Circuit Court of Appeals.
“What the Republicans came up with was a way to change our country forever,” said Reid in a 2008 interview. “They made a decision if they didn’t get every judge they wanted — every judge they wanted — then they were going to make the Senate just like the House of Representatives.”
The hypocrisy, which McCain noted on the Senate floor, could point to a more partisan level of discourse; as the minority party’s power diminishes, its voice may grow more vitriolic. “This thorough breach of trust will deeply complicate all legislative business coming before Congress, including budget negotiations,” says a senior Republican budget aide.
Mann believes that while the method was “abrupt” and “extreme,” the motion will actually return the Senate to an era of efficiency. The filibuster’s “excessive” and “routine” use, he says, “has done great damage to the Senate.” Reid’s charge is “a move back toward some sanity,” he adds. While the vast majority of Obama nominees have been confirmed, nearly half of all cloture motions ever filed have been made since 2009, and recent high-profile cases like the D.C. Circuit Court judges, Federal Housing Finance Agency director, National Labor Relations Board members, and the Defense Secretary nomination have all been filibustered.
Meanwhile, Senate Democrats who did support Reid are celebrating. After Reid left the Senate floor, his fellow Democrats and advocates cheered his entry to the Democrat caucus room. One supporter began the festivities with a joke, which will soon grow old.
“Forty-one Republicans walked into a bar,” the wag began. “And shut it down.”