The Senate didn’t go nuclear. But, actually, it kind of did.

July 16, 2013

This is a game of chicken," Norm Ornstein, a congressional scholar at the American Enterprise Institute told me on Monday night. "But having seen 'Rebel Without a Cause' many times, sometimes games of chicken don't go down the way you expect."


Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ken.)  (Alex Wong - GETTY IMAGES)

In this case, though, the game of chicken played out roughly as Harry Reid expected, or at least hoped. Today, Reid backed down from changing -- or "reinterpreting" -- the Senate's rules, which he didn't want to do anyway. In return, Republicans let Rich Cordray's nomination to lead the Consumer Financial Protection Bureau reach the Senate floor. The National Labor Relations Board will get two new nominees picked by organized labor, which means the board gets a quorum and its full powers back. Tom Perez will get a vote to lead the Department of Labor and Gina McCarthy will get a vote to lead the Environmental Protection Agency.

Democratic aides are gleeful. "CAVE," is how one described the Republicans position over e-mail. They're getting a vote on every major nominee and agency they wanted. And remember, the aide warned, "this has to be the new normal and we reserve our right to change the rules if the change doesn’t stick."

This will be the new normal. It will be the new normal under Democrats and then it will be the new normal under Republicans. The Senate stopped short of actually ending the filibuster against executive-branch nominations today. But the effect might well be the same.

The Senate didn't actually go nuclear today. But the majority took out a nuke, put it on the table, and made clear they can detonate it whenever they feel like.

It's clear now that Reid will change the rules if he believes it necessary. But so too will McConnell. If Republicans retake the Senate in 2014 and the presidency in 2016, there's no way Majority Leader McConnell will permit Democrats to routinely filibuster or otherwise obstruct President Christie's nominees. If they do, he'll throw Reid's words back in their face and make the change Reid threatened to make today.

The result is that the minority's ability to filibuster executive-branch nominees was weakened, even if it wasn't fully eliminated. The minority can use the filibuster against particularly objectionable nominees that the majority isn't overly committed to confirming. But they do so with the express indulgence of the majority. If the minority uses it too often, or chooses a nominee the majority really wants to confirm, the privilege of filibustering nominees -- and that's what it is now, a privilege granted by the majority -- will be taken away. No majority is going to take that nuke off the table.

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Neil Irwin · July 16, 2013