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Opinion Can Democrats exercise a mini-nuclear option against McConnell?

Senate Minority Leader Mitch McConnell at the Capitol on Monday. (Jim Lo Scalzo/EPA-EFE/Shutterstock)

The standoff in the Senate continues: Minority Leader Mitch McConnell (R-Ky.) is demanding that Democrats agree in advance to keep the legislative filibuster in place and is refusing to allow Senate business to proceed until they do. The result is that for now, some of President Biden’s agenda remains in limbo.

But it turns out there’s a mini-nuclear option that Democrats could exercise against McConnell, if they so choose.

This option would not do away with the legislative filibuster. Instead, it would do away only with the blockade that McConnell is imposing right at this moment — the one that is preventing the Senate from organizing and starting to get down to business.

Here’s how this would work. Right now, McConnell is filibustering the organizing resolution, which is the power-sharing agreement that would structure the Senate, given that each party has 50 senators (with Vice President Harris breaking ties).

McConnell is demanding that Senate Majority Leader Charles E. Schumer (D-N.Y.) and Democrats agree in advance to never nix the legislative filibuster. In essence, he’s filibustering the very first step toward allowing Democrats to take over the majority, to force them to keep the legislative filibuster, no matter how extensively he uses it to stymie Biden’s agenda.

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Democrats are refusing to make that commitment. While they likely won’t actually do away with the filibuster — moderates Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) are opposed — they want to preserve the option of doing so, as leverage against McConnell abusing it with abandon. McConnell’s position is utterly ludicrous, and Democrats should not cave.

But Democrats could end McConnell’s blockade now. Sarah Binder, a congressional expert at the Brookings Institution, says Democrats could devise a procedural motion to create a new precedent that would apply only to organizing resolutions.

In this scenario, Binder says, Democrats would end the filibuster on organizing resolutions in a targeted way, just as Democrats previously ended filibusters only on executive and judicial nominations but not on Supreme Court nominations, and similar to how McConnell and Republicans expanded that move to end filibusters only on Supreme Court nominations.

“Technically, yes, Democrats could with 50 votes and the vice president detonate a small nuke that only hits organizing resolutions,” Binder told me.

However, Binder added, this would in effect push the Senate further into procedural warfare.

“Each time a majority denotes a nuclear device, it greases the skids for future nukes,” Binder said. For this reason, she noted, Manchin, Sinema and other moderates might be reluctant even to detonate this mini-nuke, meaning Democrats might not have 50 votes for it.

Indeed, Manchin said in an interview that he would not support doing this.

“I will not vote to bust the filibuster under any condition, on anything that you can think of,” Manchin told me. “If you can’t sit down and work with your colleagues on the other side and find a pathway forward, then you shouldn’t be in the Senate.”

“Why would I ... vote on something that would divide us further when Joe Biden is coming in trying to unite the country?” Manchin asked.

When I pointed out that McConnell isn’t letting Democrats take over the Senate, Manchin responded that Schumer and McConnell would have to “sit down and get by this,” adding: “I believe very strongly in bipartisanship.”

Spokespeople for Sinema and Schumer didn’t immediately answer when I asked them if they were open to the mini-nuke option.

The strategic calculations for Democrats here are not easy. In addition to whether 50 Democrats would detonate this mini-nuke, it’s notable that the absurd and radical nature of McConnell’s tactics now might end up strengthening the case among moderates for some sort of filibuster reform. Even the moderates don’t think Schumer should rule out ending the filibuster and think he should keep this in his pocket as leverage.

So it’s possible that threatening the mini-nuke could disrupt this dynamic, driving the moderates further away from reform.

On the other hand, what McConnell is doing is simply intolerable. And there almost certainly will have to be a full blown confrontation at some point. As Carl Hulse puts it:

The feud reflects a challenging dynamic in the 50-50 Senate for Mr. Biden. By holding out against Democrats eager to take charge, Mr. McConnell is exercising what leverage he has. But he is also foreshadowing an eventual clash in the chamber that might otherwise have taken months to unfold over how aggressive Democrats should be in seeking to accomplish Mr. Biden’s top priorities.
Democrats say they must retain at least the threat that they could one day end the filibuster, arguing that bowing to Mr. McConnell’s demand now would only embolden Republicans to deploy it constantly, without fear of retaliation.

In other words, McConnell is almost certainly going to filibuster as much as he can of Biden’s agenda, and Democrats will have to confront this at some point. McConnell is just forcing the issue early: He’s demanding that Democrats give up their leverage over him now, so that he can proceed with maximal obstruction.

McConnell is literally holding up the transfer of control of the Senate — temporarily nullifying the outcome of the elections — to try to force them to do this. Democrats can’t allow that.

So other than waiting for McConnell to cave (which might happen, but also might not), what other options does that leave for Democrats?

The Democrats are taking control of the Senate as an impeachment trial, cabinet nominations and an ambitious Biden agenda are all on the table. (Video: The Washington Post)

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Eugene Robinson: Democrats won power. Now, they need to use it.

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