Boom! What the Senate will be like when the nuclear dust settles

November 21, 2013

Senate Majority Leader Sen. Harry Reid, D-Nev., speaks to the media on Capitol Hill in Washington, Tuesday, Nov. 19, 2013. (AP Photo/Manuel Balce Ceneta)

Senate Majority Leader Harry Reid (D-Nevada) took the Senate “nuclear” this morning.  Short version: A Senate majority banned filibusters of executive and judicial branch (save the Supreme Court) nominees.  Majorities now need a majority– not a supermajority– to bring the Senate to confirmation vote.  Long version: Senate majority set a new precedent (by majority vote) that reinterprets the chamber’s cloture rule to require only a majority to invoke cloture (cut off debate) on nominations rather than requiring 60 votes.  So, what changed? The number of votes required to cut off debate on nominations.  (Confirmation votes have always been by majority vote.)

Some quick reactions and questions (though I see that Jon Bernstein has beat me to the punch on key questions):

1.  Is today’s change as landmark as reporters say?  Yes, this is big.  Jeremy Peters in the New York Times argues that “The change is the most fundamental shift in the way the Senate functions in more than a generation.”  Peters is probably correct.  To be sure, Senate majorities have nibbled away at parts of the Senate’s Rule 22 (the cloture rule) since the threshold was last changed in 1975.  Some of those changes (such as imposing and then reducing a post-cloture debate cap) were achieved by following the formal rules of the Senate.  Others (such as banning filibusters of motions to proceed to particular nominations) were changed by mini-nuclear options, if you will.  In contrast, this is the first reform of Senate rules that changes the number of votes required to invoke cloture.  And the Democrats did it in an institutionally-gutsy way.  Senate majorities will still have to go through the steps of filing for cloture (I think!), but now a simple majority suffices to end debate to bring the Senate to an up-or-down vote on nominees.  This is what Senate Republicans called for 2005; Harry Reid has delivered it.  (Careful what you wish for.)

2.  How will advice and consent change?  The mostly likely effect will be felt when the president’s party controls the Senate.  Before today’s change, presidents (typically, although not always) chose nominees with an eye to whether the nominees could secure 60 votes for cloture.   With only a majority required to bring the Senate to a confirmation vote, there will be little incentive for presidents to consult.   I think the biggest potential effect will be visible with appointments to the federal bench.  Delays in selecting nominees in theory should go down, to the extent that these delays have been caused by an administration’s inability to secure the advance consent of home state senators.  Home state senators from the president’s party will no doubt still wield influence (their votes are still needed), but the rule change today shifts important leverage to the president in selecting nominees for lifetime appointments to the bench.  That said, when the opposition party controls the Senate, presidents’ leeway will be trimmed: A Senate majority of the opposite party must still approve the president’s choices.

3.  Will senators’ “holds” and “blue slips” for judicial nominees still slow down nominations?  Probably not.  Senators still retain some ability to impose delays in committee nomination hearings and votes.  (Chairs are not under any formal obligation to delay a nomination when a colleague objects to a nomination through the blue slip process.) But delays in securing confirmation votes will theoretically be a thing of the past.  To explain, a “hold” is technically a threat to withhold consent when a leader seeks to move into executive session to call up a nomination for a confirmation vote. Yes, senators can still threaten to object. But now the majority leader simply needs to file for cloture and secure a majority to defuse a senator’s threat.  Only in periods of divided government can we really expect to see holds and blue slips retain their bite.

4. Will GOP senators retaliate by blowing up every remaining bridge in sight? This has historically been a viable threat that has undermined majorities’ efforts to go nuclear.  But such retaliation clearly did not dissuade Reid and his colleagues from going forward.  As he said on more than one occasion, how much worse can the Senate get?  Or as Greg Koger has suggested, senators are already exploiting the least costly avenues of obstruction.  To be more obstructive would likely begin to impose more costs on the minority that they might not want to absorb. Hanging around the chamber to cast votes just to slow down the majority might not be worth it for the minority.  And at some point, the risk of being tagged as obstructionist could hurt GOP senators in 2014 (though this remains to be seen of course).

5.  Is the filibuster doomed?  Many speculate that the GOP refused to compromise to forestall the Democrats’ nuclear move because they secretly plan to do away with the filibuster when they regain control of the Senate and the White House. I’m not so sure. I do think it will be hard to maintain the filibuster for Supreme Court nominees if Democrats threaten to filibuster the next Supreme Court appointment when the GOP control the White House and the Senate.   But senators still do love the filibuster, even when they struggle in the majority to get things done.  To be sure, today’s Democratic maneuver makes going nuclear look really easy, but I’m not yet convinced that the filibuster for legislative matters will also die a swift death at the hands of even the most frustrated majority. Of course, with the House in GOP hands, Democrats understand the futility of doing away with the rest of Rule 22 quite so fast.

6.   And what do students of the Senate really think about the nuclear option?  Of course, we disagree! But I’m in Steve Smith’s camp when he notes that the Senate Democrats “took the brute force approach.”  Democrats could have offered a resolution to formally change the rules, and then seek a ruling that a majority could cut off debate by majority vote on that rules resolution.  The end result would be a vote to formally change Rule 22 so that the Senate’s interpretation of the rules (majority cloture for nominations) would match the formal rule. Instead, Democrats created a new precedent by majority vote that reinterprets the formal rules of the Senate in a way that is at odds with the formal Rule 22.  In other words, when you look up Rule 22, you won’t see a formal exception for executive and judicial nominations carved out of it.   Yes, Senate majorities create new precedents to interpret the rules regularly.  And the end result was the same, even if Democrats could have taken a different route to get there.

And yes, this was indeed my Superbowl.  Bummer no ads on C-Span though.

Sarah Binder is a professor of political science at George Washington University and a senior fellow at the Brookings Institution. She has authored or co-authored four books on legislative politics, and she has a mild obsession with congressional rules, the history of Congress, and the Fed.
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Joshua Tucker | November 21, 2013