Going Nuclear

The nuclear option has been deployed! We're all going to have to duck and cover!

If you're nervous about the frighteningly named "nuclear option" that you've been hearing so much about, you shouldn't be. The "nuclear option" is a dramatic name given to a rare procedural rules change the Democrats in the Senate implemented on Thursday. The measure prevents the minority from filibustering presidential nominees for cabinet positions and all judicial posts except ones on the Supreme Court.

When did filibusters become such a problem? We rarely see Senators take to the floor, a la Mr. Smith Goes to Washington, and speak for hours to prevent a bill from being voted on. The last time someone in the Senate held the floor with a long-winded speech was Rand Paul's filibuster in March over Obama's nominee for the director of the CIA. (Ted Cruz's marathon speech doesn't count, as it was not technically a filibuster.)

But there is another kind of filibuster that has been used far more often in recent months called the "silent filibuster." With a silent filibuster, a Senator, or group of Senators threatens to hold to floor, and to override this threat, the majority party must achieve cloture on the legislation. What that means is, in order to stop debate, both real and threatened, 60 must vote to end debate. Only then can they proceed to a simple up or down vote on the legislation or nomination.

Why would the threat of a filibuster scare the majority party into compliance? Many people argue that, in the threat of a filibuster, the majority party should just let the minority party talk, and wear them down. In recent years, however, this has not been effective. If a bill is filibustered for too long, and fails too many cloture votes, it is pulled from the floor and effectively killed. This has happened several times in recent years with Democrat's bills. Eventually, the Democrats started to listen to the filibuster threats and responding with increasing cloture votes.

Not anymore. With the rule change, the Republicans are not allowed to hold a talking or a silent filibuster against any presidential nominees for cabinet positions or the judiciary branch. The only presidential appointees that can still be filibustered are Supreme Courtjustices. The bill passed 52-48, with three democrats defecting. Two were from red states, and Senator Carl Levin (D-MN) is merely an opponent of a change in rules.

How did Senator Reid (D-NV) change the rules? It came down a slightly complicated series of votes. Basically, Senator Reid asked that the Senate vote on a motion to proceed to a motion to reconsider the motion to invoke cloture on the nomination of Patricia Millet to the D.C.Circuit Court of Appeals.

That's a lot of motions in one vote. In normal English, that means the Senate will proceed to another cloture vote (or a vote ending debate) on the nomination of Patricia Millet. As motions only need 51 votes, this passed. The Senator McConnell (R-KY) moved to adjourn the Senate,which failed. Senator Reid moved to reconsider the motion to invoke cloture on the nomination of Millet. As this was not a motion of cloture, and merely a motion to reconsider cloture, it also passed with a simple majority. Finally, Senator Reid asked for the Senate Pro Tempore, Senator Leahy (D-VT) to rule as to whether ornot cloture on nominees took 60 votes and the chair ruled that they do.

And here's where it becomes tricky. Senator Reid asked to appeal the ruling of the chair, which meant that Senators were asked if they agreed that nominees needed a 60 vote cloture or if nominees could be passed with a simple majority of 51 Senators. This was the key vote that came down to 48 Senators (mostly Republican) agreeing with the ruling of the chair, and 52 Senators (entirely Democratic, including the chair) disagreeing with the ruling. And with that, the Senate rules were changed.

This rule change will certainly make the Senate more effective, there's no question about that. But while there is still a mechanism for the minority to voice their dissent, mainly in committee hearings of nominees, this rule change takes significant power away from the minority. Especially when you consider that judges are how many presidents ensure their policies will be carried out after they leave office. By removing the possibility of a cloture vote, it will be harder for the minority to prevent the nomination of judges they may not agree with.

For more information on how the silent filibuster works, this Washington Post article and accompanying graphic explains it better than I could: http://www.washingtonpost.com/blogs/the-fix/wp/2013/02/14/the-silent-filibuster-explained/

First Published: December 6, 2013