The Washington Post

Return of the 'nuclear option'

Among many other things, Tuesday’s elections moved filibuster reform to the front of the conversation. For the second time in four years, Democrats will have a strong working majority in the Senate — 55 seats to 45 for the GOP. And, as in 2009, they will have an agenda to move forward: rescinding the Bush tax cuts on income above $250,000; crafting some kind of immigration reform and passing more assistance for the economy. Filibuster reform wasn’t on the table in 2009, but after two years of relentless obstruction from congressional Republicans — represented by the dramatic spike in cloture motions — reforming or ending the filibuster has become a key issue for Senate Democrats and their activist allies.

So I wouldn’t be surprised if Harry Reid pulls the trigger on his promise to do something about the filibuster. Indeed, the Associated Press reports that he is mulling a proposal to change Senate rules by simple majority vote:

“I think that the rules have been abused and that we’re going to work to change them,” Reid, D-Nev., told reporters this past week. “We’re not going to do away with the filibuster, but we’re going to make the Senate a more meaningful place, we’re going to make it so that we can get things done.”

Democrats say that vote to change the rules would require a simple majority of senators, and they argue that the Constitution lets Senate majorities write new rules for the chamber. That, in effect, would mean Democrats could change the rules over GOP opposition, assuming 51 Democrats go along.

This would be a retread of former Senate majority leader Bill Frist’s threat during the Bush administration to use the “nuclear option” and eliminate filibusters on judicial nominees. That standoff eventually led to the “Gang of 12” compromise, but in retrospect, Democrats made a terrible strategic error. Allowing Frist to end filibusters on judicial nominees would have opened the door to overall filibuster reform, which would have benefited Democrats in the 111th Congress — without the filibuster to empower GOP obstructionism, laws including the Affordable Care Act and Dodd-Frank could have passed under less acrimonious circumstances.

Reid doesn’t actually need to pull the trigger on the nuclear option to achieve reform. The threat of losing the filibuster might be enough to spur an agreement that gives majorities more flexibility in achieving their agenda. Indeed, this looks like the likeliest outcome — the reforms under discussion would preserve the minority's ability to force sustained debate but prevent the use of a strategy that gums the process and prevents anything from moving forward:

Reid wants to prevent filibusters on “motions to proceed,” which let the Senate begin debating a bill, and aides say he might consider other restrictions as well. Reid plans to discuss it with fellow Democrats in the postelection session. Discussions with [Senate Minority Leader Mitch] McConnell could occur as well, Democratic aides said.

President Obama has a role to play here as well. In the final months of his campaign for reelection, Obama promised to “break” the Republican “fever” of obstruction if the public gave him a second term. This is an opportunity to follow through. If Reid moves forward with filibuster reform, and Obama stumps on behalf of it, they could push Republicans into an agreement and actually make progress against the gridlock and stasis that have gripped Washington for the last two years.

Jamelle Bouie is a staff writer at The American Prospect, where he writes a blog.

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