Details of the Nuclear Option, How Harry Reid will Thwart Senate Rules and End Nomination Filibusters

According to its rules, the Senate cannot vote on a motion if any member wishes to continue debate (i.e. to filibuster). However, as the Senate rules also specify, this rule can be broken if the Senate “invokes cloture.”

Invoking cloture requires 60 votes. However, if the issue involves a change in the Senate rules, then invoking cloture requires two-thirds of the Senate, 67 votes if all the senators are present.

Word is that Harry Reid is going to invoke the “nuclear option” and abolish the filibuster for presidential nominees. How can he do this when the Senate rules imply that he needs 67 votes to do that?

If Reid and his fellow Democrats indeed try to end filibusters on presidential nominees, here’s the way I suspect they will do it.

First, because of the gravity of the situation (and also because there is the possibility of a tied vote), on the day of the “nuclear option” Reid will ask Joe Biden to execute his constitutional prerogative and be the presiding officer of the Senate. Once the Senate begins debate on a presidential nomination, Biden will recognize a fellow Democrat, most likely Harry Reid. That Democrat will ask that the Senate “move the previous question.”

In my class on Congress, as a homework question, I ask my students: “Does the Senate ever use the term ‘move the previous question’?  What phrase does it use instead?” The answer to the first question is: No, the Senate does not use the phrase ‘move the previous question.’ That’s a phrase that the House uses. It means “to end debate and amendments on the issue at hand and have a vote on the issue.” The House rules require only a majority vote to do that.

The Senate, meanwhile, never uses that term. Instead, it uses the term “invoke cloture.” It means the same thing as “moving the previous question,” but, unlike the House, to execute that concept the Senate requires a super-majority vote.

After a senator such as Reid asks to “move the previous question,” I predict a Republican, most likely Mitch McConnell, will quickly rise, and, as Senate rules allow, interrupt by saying “point of order.” He will then explain my point above, that the Senate has no concept “to move the previous question.”

Joe Biden will then respond, “Yes, it does.”

McConnell’s only recourse will be “to appeal the chair’s decision.” This means that he is asking for a vote by all the senators to decide whether Biden is correct or not. Such a vote is decided by a simple majority. Thus, if 50 Democrats are willing to pretend that Joe Biden is correct, that the Senate really has a procedure to “move the previous question,” then they can eviscerate the Senate’s filibuster rules. They will end the Republicans’ filibuster with a 50-vote majority, rather than a 60-vote super-majority as cloture requires.

Some might wonder: How can Joe Biden rule that way when the Senate rules clearly disallow it?

I’ve seen worse. Consider the example of a friend of mine who was a state senator. His senate had a rule stating that if the governor proposed a bill within the first 10 days of the legislative session, then that bill could receive an immediate vote on the senate floor; it did not have to be reviewed in committee like other bills. The governor once proposed a bill on the twelfth day of the legislation session. Thus, according to the rules, the bill should have been sent to committee. However, the senate president ruled, “No, we are still within the first ten days of the session,”when  it clearly was not. My friend asked to appeal the president’s ruling. A majority sided with the president, thus declaring that the twelfth day really was within the first 10 days.  

I suspect that the U.S. Senate will do something similar. That is, it will rule that the Senate, like the House, can “move the previous question” with a simple-majority vote, even though its rules clearly don’t allow such a procedure.

Politico reports that a few Democrats, such as Max Baucus and Carl Levin, are queazy about such a tactic. Thus, maybe I’ll be proven wrong. But I suspect that all the Democrats will go along with Reid’s plan. Thus, he’ll indeed have a majority to execute the nuclear option.

  1. KC Mulville

    This is just a logical extension of the false principle that “the law is what I say it is.” 

    This is an underlying principle of the living constitution. It’s also the basis of the idea that the Supreme Court isn’t just one of the three branches of government, and that it’s really the referee for the other two … making it one level higher.

    • And that’s why every June, we get the Court laying down decisions on social policy (that really should be decided by politics).

    It’s a false principle. 

  2. John Murdoch

    Facing the prospect of the 2014 elections–and the by no means inconceivable possibility of a Republican takeover of the Senate, does Reid really want to go down that road?

    Faced with the prospect of a Republican majority, whose shoes would Reid rather be in–Mitch McConnell’s? Or Nancy Whatshername?

  3. Pencilvania

    I’d like to invoke tar and feathers, please?

  4. Nick Stuart

    If Reid goes ahead with changing the rules, will the Republicans insist on playing by the new rules when they have the majority?

  5. billy

    If the Senators go along with this, they will be effectively rendering up to 49 Senators irrelevant to the legislative (and appropriation!) process.

    That is amazing to me; historically, Senators of both parties have jealously guarded their special privileges.

  6. TJ

    Since America has become less and less the republic it once was, they may as well just make it official and go full banana.

  7. Daniel Sattelberger
    billy: If the Senators go along with this, they will be effectively rendering up to 49 Senators irrelevant to the legislative (and appropriation!) process.

    That is amazing to me; historically, Senators of both parties have jealously guarded their special privileges. · 50 minutes ago

    Part of the problem is that since the Dems have been in the majority since 2006 and they’ve had so many seat pickups and retirements since then a majority of their caucus has never been in the minority.

  8. billy
    Dan

    Part of the problem is that since the Dems have been in the majority since 2006 and they’ve had so many seat pickups and retirements since then a majority of their caucus has never been in the minority. · 0 minutes ago

    That makes sense. It is also telling that two of the most senior members of the caucus are reluctant to support it.

  9. Brian McMenomy

    Talk about violating the idea that the Senate & House were supposed to fulfill different functions; yes, of course the filibuster & cloture are frustrating; they’resupposed to be.  I feel a bit like I’m observing the Athenian assembly cashier 5 out the 6 victorious admirals  at Arginusae, knowing what’s coming next at Aegospotami (the battle that destroyed the Athenian navy and guaranteed the fall of Athens at the end of the Peloponnesian War).  The popular assembly has been given free rein to do something stupid, and there was no countervailing structure to say “Hey, wait a minute; these guys justwon.  Shouldn’t we cut them a little slack instead of getting after them because they didn’t recover enough of our dead?”

    This little incident was one major reason why democracy had such a bad name for so long through history, and why the founders struggled so mightily to separate power instead of just giving the majority what they want.  And, as Mr. Mulville reminded us above, why a “living constitution” is so destructive.

    Of course, you hear very little from the media; they’re breathlessly waiting for the Zimmerman verdict.  Typical.

  10. Steve C.

    As much as I don’t care for LBJ, I can’t imagine he wouldn’t have found a way to broker some form of comprise. When you think about it, advising and consenting is a power solely held by the Senate. Only a partisan would sell that legacy out to get approval of the Assistant Secretary of Stuff and Nonsense.

  11. concerned citizen

    This is ironic and particularly asinine given that it was the Democrats who began the practice of using filibusters against presidential nominees (during W’s first term) in the first place.   I mean, really, have these people no shame?  Before the Democrats started using it against such nominees as Miguel Estrada, Janice Rogers Brown, Priscilla Owen, and others, this use (abuse, some might say) was unprecedented. 

    Back then we all got lectures about the sanctity of the “rights of the minority.”  It is just so, so predictable that for them, the rules change depending on who is in charge.  

    At this point, I say fine either way — as long as the rule stays the same no matter who is in charge.  But there’s the rub.  That’s the part the Democrats don’t like, isn’t it?

  12. Pencilvania

    Does this indicate that the Prez is about to nominate someone like Van Jones to Homeland Security?

  13. Jerry Carroll

    The Democrats obviously like the chances of maintaining their Senate majority in the next election. Remember how Mitt’s crew convinced us he was going to win the White House?

  14. Skyler

    Faced with lawlessness, the only response should be lawless.  If they attempt to make such a maneuver, the republicans should forcibly shut the Senate down.

  15. MSJL

    I would not miss eliminating the entire modern structure of the filibuster. It is one thing for a Senator to rise and speak at length about some subject (as Senator Rand did a few months ago) and to make an argument, but much of what we call a “filibuster” is simply stopping up the works by demanding 60 votes for any matter to advance without argument or presenting a case. This is a modern construct and an abusive one.

    The filibuster stamps on prudential concerns that should guide the judgment of politicians. What-comes-around-goes-around is a strong rule, and it cautions against abusive overreach, because the other party will eventually come to power and will have the power to push right back. The filibuster allows an obnoxious law to continue in place even when a majority are opposed to it.

    The current structure of the filibuster is poisonous to the legislative process and abusive. It reflects a lack of faith in democratic self-government and allows Senators to avoid accountability by taking public positions on issues without having to cast votes (with the excuse of a pending filibuster).

  16. KC Mulville
    MSJL: 

    The current structure of the filibuster is poisonous to the legislative process and abusive. It reflects a lack of faith in democratic self-government and allows Senators to avoid accountability by taking public positions on issues without having to cast votes (with the excuse of a pending filibuster).

    With respect, I disagree.

    The original purpose of the filibuster was to prevent the leadership from stampeding an issue over significant opposition. For a “deliberative” body, that’s reasonable. 

    Votes count the “width” of the opposition, but a filibuster shows the “depth” of the opposition. If an issue provokes deep passion among a significant number of senators, that too should factored into the result.

    However, what changes the game these days is that filibusters are all about party, not necessarily individual issues. If party loyalty always trumps one’s perspective on an individual issue, then the filibuster is merely a tool for party bickering.

    The ironic thing is that filibusters were designed to prevent the leadership from stampeding over individual members; it was a block against leadership. Now … the leadership of both parties are the ones using the filibuster.

    The problem is parties, not the filibuster itself.

  17. MSJL

    KC Mulville:  “The original purpose of the filibuster was to prevent the leadership from stampeding an issue over significant opposition. For a “deliberative” body, that’s reasonable.”

    From what I can tell from some Googling, the original purpose of the filibuster was to cause delay in the legislative process and run down the clock (as we recently saw here in Texas).

    The problem with using the filibuster to measure the “depth” of opposition is that the modern “virtual” filibuster is a passionless exercise of stopping up the works.  Anyone can invoke it without any further effort than demanding a 60 vote supermajority.  This is similar to the nasty Senate practice of “silent holds” on nominations.

    I can agree with much of your position with regard to the speaking filibuster (e.g., Sen. Sanders filibuster against a tax deal in 2010 and Sen. Rand’s filibuster), but the virtual filibuster creates an unconstitutional supermajority requirement.

    We are long past the long winter of Democratic dominance of Congress.  Control of the House and the Senate have flipped back and forth between Democrats and Republicans at least twice in each chamber since 1994.  The best protection for the minority is the polls.

  18. Misthiocracy

    Canada’s House of Commons frequently rules that the clock reads something other than what the actual time is, so that they can go home for the day early.

    That being said, it requires a unanimous vote to do so.

  19. Ralphie

    It happens at the local level also. When one group cannot wait or get what they want with well defined rules,  precedence and procedure, they find they can usually get away with brashly doing what they want.  Who is going to do anything about it?  It is a dare, that only the brave attempt to combat. The Dems have the public on their side, mean Republicans are not letting Obama fill positions.  John Bolton was a recess appointment, a real recess appointment, not a Canadian made up one.

    It is too complex for the average citizen to understand.  They have to start with the concept of fair verses just.  Just takes a lot more thought for kids never argue for just, only fair.

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