And so the nuclear option has been used by Senate Majority Leader Harry Reid. Expect old arguments that were made so passionately years ago to be swept under the rug by those who used to advocate its use years ago (Republicans and news and old news media Republican analysts) and those who didn’t (Democrats and old and new news media Republican analysts).
But no matter what, expect to see “the nuclear option” used freely by both sides in the future in cycles where each party runs the Senate. The Hill:
In a shocking development Thursday evening, Senate Majority Leader Harry Reid (D-Nev.) triggered a rarely used procedural option informally called the “nuclear option” to change the Senate rules.
Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of a bill.
Reid’s coup passed by a vote of 51-48, leaving Senate Republican Leader Mitch McConnell (R-Ky.) fuming.
The surprise move stunned Republicans, who did not expect Reid to bring heavy artillery to what had been a humdrum knife fight over amendments to China currency legislation.
The Democratic leader had become fed up with Republican demands for votes on motions to suspend the rules after the Senate had voted to limit debate earlier in the day.
McConnell had threatened such a motion to force a vote on the original version of President Obama’s jobs package, which many Democrats don’t like because it would limit tax deductions for families earning over $250,000. The jobs package would have been considered as an amendment.
McConnell wanted to embarrass the president by demonstrating how few Democrats are willing to support his jobs plan as first drafted. (Senate Democrats have since rewritten the jobs package to pay for its stimulus provisions with a 5.6 surtax on income over $1 million.)
Reid’s move strips the minority of the power of forcing politically-charged procedural votes after the Senate has voted to cut off a potential filibuster and move to a final vote, which the Senate did on the China measure Tuesday morning, 62-38.
The Huffington Post’s story gives some additional details — and underscores some of the nuances in this story. Its worth looking at big chunks of it:
Senate Majority Leader Harry Reid (D-Nev.) led Democrats in a precedent-setting move on Thursday evening, shutting down an effort by Senate Minority Leader Mitch McConnell (R-Ky.) to hijack the floor and force the chamber to move away from debate on Chinese currency manipulation and instead vote on President Obama’s American Jobs Act.
Note the TIMING of this move. Obama had just held a press conference were he was demanding Republicans act on his jobs bill. The press conference had gotten a lot of coverage. McConnell apparently was trying to do some political jujitsu and force a vote now, hoping there would be provisions within the package that Democrats could not yet accept, have it fail, blame it on the Democrats and negate the impact on the news cycle of Obama’s press conference.
The move raises all sorts of questions: Why would the Republicans, rather than the Democrats, be insisting on having the vote that the president has been demanding for weeks? What does Reid’s move say about the filibuster? And why is the Senate debating a bill on Chinese currency anyway, one that the White House opposes and stands little chance in the House?
Senate Republicans, aware that some Democrats facing reelection are unwilling to vote for a jobs package that includes tax hikes on the wealthy, wanted to stage a vote to demonstrate the lack of party unity. But the chamber had already voted to move forward on a bill aimed at curtailing Chinese currency manipulation, which depresses the price of Chinese imports and hurts American manufacturers. That meant the chamber was in what’s known as a post-cloture period.
The Huffington Post explains some of what happened in terms of Senate rules:
McConnell moved to suspend the rules and shift debate over to the American Jobs Act. Reid argued that doing so amounted to another filibuster, because it required 60 votes to move back to the original bill, and so therefore was out of order. Sen. Mark Begich (D-Alaska), who happened to be the presiding officer at the time, asked the Senate parliamentarian what he thought. The parliamentarian advised Begich that McConnell’s motion was in order.
Reid then appealed the ruling, following a script that advocates of ending the filibuster wrote long ago. What some senators call the “constitutional option,” and what others call the “nuclear option,” involves as a first step appealing a ruling that a filibuster is in order. The second step is to defeat a motion to table that appeal, which is exactly what happened next, with all but one Democrat sticking with Reid. (Sen. Ben Nelson (D-Neb.) voted against Reid; Sen. Barbara Boxer (D-Calif.) didn’t vote.)
With the chair overruled, McConnell’s motion was declared out of order, setting a narrow precedent that motions to suspend the rules are out of order during a post-cloture period.
But it also set a more important precedent. The advice of the parliamentarian is considered sacrosanct in the Senate. Reid’s decision to overrule him opens a gate to similar efforts that could also be done by majority vote. Republicans were quickly threatening to use the new power once they return to the majority. (Reid was a proponent of filibuster reform in 2010, but didn’t pursue an effort earlier this year to reduce the number of votes needed in the Senate to move legislation forward.)
AND:
…Sen. John Cornyn (R-Texas) later tweeted that Reid’s move to rein in McConnell was “tyranny.”
…Reid’s move Thursday, in that context, is less abusive of Senate precedent than it first appears. The current rules create a situation in which two 60-vote thresholds must be met before a bill can pass, the first to end debate and the second to move to final passage. McConnell’s move to suspend the rules could have created additional 60-vote hurdles, clearly in violation of the spirit of the post-cloture period, which is intended to be a short stretch until moving to final passage.
“What just took place here is an effort to expedite what goes on around here,” Reid said, although he admitted he could be wrong.
ABC News’ blog notes that the Dems and GOPers may meet to try and defuse still rising partisan temper temperatures:
McConnell accused the Majority Leader of turning the Senate, usually with ample time for debate and discussion, into the House.
“We are fundamentally turning the Senate into the House,” McConnell said, “No amendments before cloture. No motions to suspend after cloture. The minority’s out of business.”
“I know there are some hurt feelings here,” Reid admitted, “This has to come to an end; this is not the way to legislate,” although adding that he’s “very comfortable with his move to block dilatory amendments.
“When we get a chance to legislate, we shouldn’t be held up by these dilatory matters,” Reid said, “I’m willing to legislate. I’ll take a lot of hard votes in my career and I would be happy to vote on these. But there has to be an end to this.”
McConnell rebutted that the country is better off with more debate and said the Senate made a “big mistake” tonight.
At the end of the night a tired and frustrated Senate Majority Leader Harry Reid, D-Nev., even said that the argument may have gone a little too far.
He called for a joint meeting of Democrats and Republicans behind closed doors to air out their grievances in a saner manner once they all have had time to cool off over the long Columbus Day weekend.
“I think that would be a good step forward, that [Senate Minority Leader Mitch] McConnell and I could be there in front of everybody else together, questions could be asked, statements could be made, and we could see if that would let a little air out of the tires,” Reid said of the intended impromptu future therapy session.
ABC News also offers this excellent summary:
The Senate voted to suspend the rules out of order, using a simple majority to change the rules of the debate and do an an end-run around a filibuster Republicans were launching by offering many amendments . This is called the “nuclear option” because it stops the minority from offering amendments and establishes a new precedent for the Senate. After tonight’s vote, it is no longer allowed to add post-cloture amendments which seek to suspend the rules.
Emotions ran high – not only by the procedural moves and what they’ll mean for the Senate, but also because what this move shows about the Senate.
“I think members on both sides of the aisle feel like this institution has-to-degraded into a place that is no longer a place of any deliberation at all,” Senator Corker, R-Tenn., said, “and I’d like for you and the minority leader to explain to us so that we have one story here in public as to what has happened this week to lead us to the place that we are. That’s all I’m asking. That’s all I want to know. Explain how the greatest deliberative body on a bill that many would say was a messaging bill in the first place ended up having no amendments and we’re in this place that we are right now.”
“We have changed the rules of the senate on a messaging bill, on a matter that the majority leader had the votes on,” Senator Wicker, R-MS., said, “so that is my objection. That is why I am so disturbed about the overreaction and heavy-handedness of this move. This is not a matter of supporting of one bill that he wants to get us out of town on. This is precedent, and we have — unless we can change it, we have forever changed the right of the majority to be heard post cloture, and I am saddened about that.”
Senator Schumer, D-NY., channeling a therapist, suggesting using this debate as a flashpoint to try to come together and work the larger problem of partisanship in the Senate out. ”
Coming together? All signs are that:
UPDATE: In the Great Minds Think Alike Department here’s Talking Points Memo’s Brian Buetler:
To wit, after legislation has overcome a filibuster, only a very narrow set of germane amendments can come up for votes — unless the rules are suspended. Since Obama’s jobs bill is not germane to Chinese currency legislation, it was out of order, and suspending the rules was McConnell’s only way to force the vote. This thin reed of minority power has been ripped from its root, because Reid’s play Thursday night.
Still, what Reid did operates on the same principle as the “nuclear option.” It is tactically the same maneuver Republicans threatened to pull in 2005 when they pushed to end judicial filibusters. But the issue at stake is much, much narrower — it ends a ploy that hasn’t been pulled successfully in decades, except to delay proceedings on the Senate floor and score political points.
And this is where timing becomes important. Reid has wiped out an extremely small minority right (technically, the right to force a vote on a motion to suspend the rules after cloture has been invoked on a bill to consider a non-germane amendment). But he’s done so at the nadir of Democratic power with Republicans strongly positioned to assume the majority in 2012. Republicans are furious about it. And now that Reid’s done something that hasn’t been done in at least 30 years — and may be unprecedented — a narrow GOP majority in 2013 could use it as cover to affect much broader changes to the Senate rules. Including, if they want, eliminating the filibuster.
If Republicans win the Senate in 2012, we all may be revisiting this odd procedural maneuver, but with much, much more at stake.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.