The Not-So Nuclear Option

October 7, 2011

The blogosphere is abuzz with news that the Senate Majority Leader Harry Reid invoked the so-called “Nuclear Option” last night to squelch procedural game-playing. By exercising his power to exert majority control over the legislative process, Reid certainly showed some chutzpah. But what happened was not revolutionary — indeed, it was not even unprecedented.   

Here’s the story. Reid and McConnell have spent several days arm-wrestling. Reid has been pushing a bill to punish China for currency manipulation; McConnell has been seeking to force a vote on President Obama’s American Jobs Act before Senate Democrats are ready for it. The currency bill moved forward — yesterday, the bill reached its final, post-cloture period before an up-or-down vote. Then, McConnell sought to attach a non-related amendment to the bill — the entire Jobs Act. This is plainly against Senate rules. (After a cloture vote, all amendments must be germane to the principal legislation; this one, quite clearly, was not).

And so, McConnell took an over-the-top step: He moved to suspend the Senate rules and allow a vote on both bills anyway. Reid protested that McConnell’s amendment and motion were improper delay tactics, and thus out of order. Unable to settle this disagreement, they appealed to the Senate parliamentarian. And then, things got interesting.

The parliamentarian ruled that McConnell was not out of order. Reid retorted by appealing to the entire Senate — and obtained a majority vote to overturn the parliamentarian. This means that, similar to the “nuclear” or “constitutional” option available at the start of each new Senate to change the Senate’s standing rules, a simple majority successfully overcame obstructionism (and an unfavorable ruling by the parliamentarian) in order to proceed with an up-or-down vote. In other words, the Senate exercised its inherent constitutional power to determine its own rules by a simple majority.

Yesterday’s events are certainly noteworthy. Reid exerted his majority’s control over the legislative process in a manner that he could use to beat other types of procedural game-playing. (For instance, Reid could be much more aggressive in his approach to secret holds, either by calling the holder’s bluff and forcing a public filibuster, or by defying Senate tradition and simply ignoring the indefensible request to thwart someone’s nomination indefinitely.)

On the other hand, these events are not unprecedented. Consider this:

(1) As explained fully here, there is not much question that the Senate has the constitutional power to override a filibuster via majority vote at the start of a new Congress. Indeed, it has been done before, at the start of the legislative session in 1975. Reid’s move yesterday just adds another layer of supporting precedent.

(2) Despite common misperception, the Senate changes its procedural rules all the time — through unanimous consent agreements, for instance. And, both chambers occasionally enact statutes with procedural restrictions that allegedly apply to future Congresses, via a simple majority vote.

(3) Finally, while the 2001 Republican-led Senate may not have formally voted to override the parliamentarian’s opinion on the use of reconciliation, it was only because they did not have to. Instead, the Senate fired their parliamentarian and hired someone who would not rule against them. There is little doubt, however, that the Senate did not feel bound to an opinion with which they disagreed.

And so, at the end of the day, the big news from yesterday is no news at all. The latest procedural competition simply underscored the archaic, overly-complicated nature of the Senate rules. Reform is well overdue.