Today's the day. This afternoon, Senate Majority Leader Harry Reid (D-NV) might finally detonate the "nuclear option" and abolish the filibuster on executive nominations. Ot maybe he won't. This morning, he says a deal might be near "that will be good for everybody." A tentative compromise has apparently been reached. Update: Richard Cordray is being confirmed as a part of the deal, so no nuclear option today. Keep reading for more background on how we got here.
The showdown represents the culmination of 10 years of senatorial wrangling on the subject, and sets an important precedent for future Senates that might want to change the rules in the middle of a session.
So what exactly is Reid threatening today, and how did it come to this? Let's break it down, piece by piece.
What, precisely, is Reid doing?
The precise procedural maneuver that Reid would use to abolish the filibuster on executive nominations is unknown at this point, but Sarah Binder, a political scientist and congressional rules expert at George Washington University, says that Reid's speech at the Center for American Progress on Monday implied he's talking about changing Senate precedents rather than the rules themselves. "[In] the last 36 years, we've changed the rules by a simple majority 18 times. I've done it. We always do it [with a] simple majority when things don't work," Reid said.
Here's one way Reid could do to abolish the filibuster on executive nominations (credit goes to the Congressional Research Service for thinking of this one). He could have the presiding officer declare that filibustering executive nominations is unconstitutional — citing, as Reid did in his CAP speech, the advise-and-consent provision of the Constitution (as Reid said - "That's what the Constitution says, that for a presidential nominee, it should be a simple majority"). A GOP senator appeals the ruling, and then a Democratic senator moves to table the appeal. That goes to a simple majority vote of the Senate. If a majority sides with the Democrats, then the filibuster rule is reinterpreted — not actually changed — in such a way as to rule out filibusters on executive nominations.
It's worth emphasizing that that's just one potential way this could go down. Reid could also change the rules outright by using the above method to make rule changes only require a simply majority. "But I take it that Reid's repeated reference to the 18 new precedents probably means that he's thinking in terms of creating a new precedent," writes Binder. That, after all, is how he did it in October 2011, the last time he altered the rules by simple majority (albeit in a much, much milder way).
Does it apply to judicial nominations too?
Nope. Reid was clear at CAP and has been clear throughout this process that he only wants to change the rules for executive nominations. "On judges, I'm comfortable with our doing what we're doing," he said in response to a question from CAP president Neera Tanden. "We have to see what happens, but I'm very comfortable with where we are now, and I'm not trying to ask for this other places."
What about legislation?
Nuh-uh. No changes will occur around legislative filibusters, and Reid says he remains supportive of the 60-vote threshold there. Note, too, that the filibuster isn't much of a binding constraint on Reid and President Obama at the moment. After all, any legislation needs to pass the House, and anything that John Boehner and Barack Obama agree on is probably going to get over 60 votes in the Senate easily.
Don't rules changes have to happen at the beginning of a new Congress?
No. That's largely a rhetorical argument that reformers like to make to justify using a simple majority to change the rules. But the precise same mechanism that can be used at the beginning of a new Congress can be used in the middle of a Congress. It's significant that Reid is abandoning the argument that majority-vote rule changes (or reinterpretations) have to take place at the start of a new Congress, but technically, there's nothing new here.
Have any rule changes happened this way before, with just a simple majority?
Yep! Reid reinterpreted the rules around motions to suspend the rules in October 2011 by a simple majority vote, using a procedure quite similar to the one outlined above. Republicans threatened to use a similar approach to eliminate judicial filibusters in 2005.
The history of these rules changes goes back quite awhile. As this CRS report explains, Sen. James Pearson (R-KS) submitted a resolution changing the cloture threshold from a two-thirds majority (or 67 votes) to a simple majority. Senate Majority Leader Mike Mansfield (D-MT) raised a point of order claiming that Pearson was violating the rules of the Senate. Vice President Nelson Rockefeller, the presiding officer, put the question to the Senate, which voted by a simple majority to table Mansfield's point of order, effectively affirming Pearson's resolution.
Subsequent negotiations and maneuvers resulted in a compromise wherein the threshold was changed to a three-fifths majority (60 votes), where it remains today. But the important point is that the Senate has already embraced the idea that you can change the rules around filibusters with a simple majority. "The Senate briefly endorsed majority cloture, but later reversed itself and re-established the precedent that the rules are continuous," the CRS summarizes. That happened at the start of a new Congress, but as explained above, that need not be the case for new rule changes.
Wasn't the "nuclear option" a Republican thing originally?
Yep. The term was coined by Senator Trent Lott (R-MS) in 2003, who floated it as a way around a Democratic filibuster of D.C. Circuit Court of Appeals nominee Miguel Estrada. Things came to a head in 2005, when Senate Majority Leader Bill Frist (R-Tenn.) came very close to using the option to get around Democratic opposition to a number of other federal appeals court nominees, before the Gang of 14 intervened and allowed the nominees to get confirmed without changing the rules.
How did Democrats come to support it?
Frustration, basically. Much has been made of Reid's criticism of the option when Republicans floated it. "The duties of the United States Senate are set forth in the Constitution of the United States," he said. "Nowhere in that document does it say the Senate has a duty to give presidential nominees 'an up-or-down vote.'"
In response to a question on this point Monday, Reid replied that Republicans' change would have applied to judicial nominees, which made it totally different. "I wasn't talking about changing the rules for nominees," he said "I was talking about changing the rules for judges. OK?" Your mileage may vary as to how valid a distinction that is.
But it's worth noting that many liberals in 2005 took the opportunity to argue in favor of Frist's proposed change as an early step towards eliminating the filibuster altogether.
Are today's filibusters really unprecedented?
Not if you literally mean "without precedent," but as this chart that Senate Democrats are passing around shows, it is indeed true that the number of filibusters on executive nominations has gone up under Obama:
So do Republicans really just hate these nominees?
Not necessarily. Sometimes, as with Consumer Financial Protection Bureau director nominee Richard Cordray, they just oppose the agency that the nominee is being appointed to lead, and are refusing to support any nominee until the administration agrees to certain changes to it. The same goes for the National Labor Relations Board, where Republicans are refusing to confirm enough nominees for the agency to have the quorum it needs to legally function.
But it is true that many filibustered nominees are eventually confirmed. As McConnell recounted on the Senate floor, "The energy secretary, 97-0. Secretary of the Interior, 87-11. The Secretary of the Treasury, 71-26. The Secretary of State, 94-3, just a few days after the Senate got his nomination. The Secretary of Commerce, 97-1. The Secretary of Transportation, 100-0. The Director of the Office of Management and Budget, 96-0. The administrator of the Centers for Medicare and Medicaid Services 91-7. The Chair of the S.E.C., on a voice vote — in other words, unanimously."
But for Democrats, that just shows that the nominees being delayed are well-qualified and don't deserve their treatment. "That’s the whole point," Reid said at CAP. "There’s nothing wrong with these people. There’s nothing wrong with their qualifications. [Republicans] simply want to stall what goes on."
So is the nuclear option definitely happening?
Though it looks very likely, nothing's for certain. Earlier this year, when filibuster reforms looked likely at the beginning of the 113th Congress, Harry Reid and Senate Minority Leader Mitch McConnell (R-KY) ended up cutting a deal. Same thing happened in 1975, when Pearson tried to reduce the cloture threshold to 50 votes. And in 2005, the Gang of 14 deal effectively blocked the nuclear option. There's some indication that Reid and McConnell are cutting a deal today to evade the nuclear option. Time will tell.