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Did Reid Go Nuclear?

As you may have heard, Senate Majority Leader Reid invoked the “nuclear option” yesterday, thereby laying waste to the Senate and all its traditions. At least that it is how Alexander Bolton of The Hill describes Reid’s actions in response to a Republican motion to suspend the rules with respect to the China currency legislation pending before the Senate. Bolton explains that “Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of the bill.”

David Waldman says that Bolton is “way overstating the case” when he uses the term “nuclear option” to describe Reid’s actions. Waldman seems to believe that the term only applies to an action that eliminates or greatly curtails the filibuster, which did not happen here. But Waldman acknowledges that Reid’s action bears “strong similarities” to the nuclear option and that “a very similar procedure can be used to reverse unfavorable rulings on anything, including the filibuster, and doing so on the subject of the filibuster was what people came to understand as the ‘nuclear option’ way back in 2005.” So his disagreement with Bolton is more semantic than substantive.

There is no formal definition of the “nuclear option” and little point in debating the semantics of the term. The real question is whether yesterday’s action by the Senate was part of the normal process of interpreting and applying its rules, or whether it represented a radical change in that process. In my view, the jury is still out on that question. Here’s why.

This is what happened. The Senate had invoked cloture on the China currency bill. This meant that further debate was to be limited (to 30 hours) and that only germane amendments would be in order. However, Minority Leader McConnell offered a motion to suspend the rules, which, if successful, would have waived these limitations. McConnell’s objective was apparently to force a vote on President Obama’s jobs bill (which was not germane to the underlying legislation).

Reid raised a point of order that McConnell’s motion was not permitted absent unanimous consent. However, “[t]he chair, which was occupied by Sen. Mark Begich (D-Alaska), ruled according to the advice of the Senate parliamentarian that Republicans had the right to force a vote on suspending the rules and proceeding to President Obama’s controversial jobs bill.”

Reid then appealed the chair’s ruling to the full Senate, which overturned it by a vote of 51-48. As a consequence, McConnell’s motion was ruled out of order and will not be considered by the Senate.

It is important to note that Reid’s position was grounded in his interpretation of existing Senate rules and precedents. He argued that a post-cloture motion to suspend the rules should be considered a “dilatory” amendment prohibited by Senate rules because the rules, as amended in 1979, were clearly designed to limit post-cloture amendment and debate. He stated: “This potential for filibuster by amendment is exactly the circumstance that the Senate sought to end by its 1979 amendments.”

Republican parliamentary experts disagreed with Reid’s interpretation, contending that motions to suspend the rules would still be subject to the 30-hour limitation. To make matters more complicated, Brian Darling argues that Reid himself violated the spirit and letter of the Senate rules by “filling the amendment tree,” thereby preventing other Senators from offering amendments as contemplated by the rules. If this is correct, it may be that McConnell’s motion was not dilatory in this situation, even if it might have been ruled as dilatory in different circumstances.

It is not my purpose to figure out who is right here. Rather it is to draw a distinction between a “good faith” (i.e., objectively reasonable) dispute over the meaning or application of the Senate rules, and the so-called “nuclear option.” Although there is no formal definition of the “nuclear option,” the term is generally refers to asserting the power of a Senate majority to change or invalidate a Senate rule without complying with the requirements for amending the rules as specified in the rules themselves.

An obvious comparison can be made to the power of the Supreme Court to interpret and apply the Constitution. The Supreme Court does not claim the power to change the Constitution, which can only be done through compliance with the procedures of Article V, but it does claim to be the final word on how the Constitution is to be interpreted and applied. As observers of the Court would confirm, a sufficiently expansive concept of the latter power may often seem indistinguishable from the former.

It is undisputed that the Senate has the authority, by simple majority vote, to be the last word on how its rules are to be interpreted and applied. The mere fact that the Senate has used this authority to overturn a ruling of the Parliamentarian does not mean that the nuclear option has been invoked. However, if the Senate’s action is to be part of the normal process of the parliamentary system, rather than a revolutionary overthrow of that system, it must be justified by close attention to existing rules and precedents, and carried out in accordance with the Senate’s traditions.

This distinction, however difficult to draw, is key to determining whether the “nuclear option” has been invoked. Unlike the event for which it is named, a parliamentary “nuclear option” may not be obvious when it occurs, and it may be defused after the fact by a process of consultation and compromise.

Only time will tell if the Majority Leader has truly gone nuclear.

 

Update: Sarah Binder has some similar observations about the “nuclear option,” distinguishing between setting a new precedent and taking a “revolutionary act.” It is also worth reading Steve Smith’s comments below her post.

More commentary from Jonathan Adler and Rick Hasen.

 

 

3 Comments

  1. Well, no. My disagreement is substantive.

    Binder says the same thing: Bolton overstates the case. Smith basically agrees and cites the same precedent that I did.

    So I think that just about wraps it up. If there’s such a thing as the nuclear option, this wasn’t it.

  2. pow wow says:

    [I first submitted the following comment on Monday evening, 10/10, with an URL included, without success. I'm trying again today, after stripping the URL from the comment, and from a 10/12 Addendum, that also didn't post, which I will resubmit separately for reasons of length.]

    “It is undisputed that the Senate has the authority, by simple majority vote, to be the last word on how its rules are to be interpreted and applied. The mere fact that the Senate has used this authority to overturn a ruling of the Parliamentarian does not mean that the nuclear option has been invoked. However, if the Senate’s action is to be part of the normal process of the parliamentary system, rather than a revolutionary overthrow of that system, it must be justified by close attention to existing rules and precedents, and carried out in accordance with the Senate’s traditions.”

    Very well said, Michael.

    Thank you for tackling this subject, and for this very informative blog. The public needs all the help it can get with regard to what’s really going on in Congress, given the lack of interest on the part of the Washington media in covering more than the misleading, self-serving partisan spin generated by the Parties.

    I believe that all of the links in your post, aside from Bolton’s Hill article and, I assume, Rick Hasen’s, are to explanations of Thursday’s actions written by Party partisans of one flavor or another, at least some of whom have in the past had a tendency to overlook or shade the facts to favor their ‘side of the aisle.’ So I’d like to add a non-Party-aligned perspective, to elaborate on the incomplete/confused (and, no doubt, instinctively Party-framed) reporting of Bolton.

    What follows is an excerpt, focused on the procedural facts of Thursday’s developments, from a lengthy diary, and subsequent comments, that I wrote 10/7 about the 10/6 reversal of Senate precedent (the diary and comments contain pertinent links and formatting for emphasis, which I’ve stripped out from the excerpt below, on the assumption that your commenting software doesn’t accept HTML coding):

    It should be noted, first of all, that it was Harry Reid, not Mitch McConnell or any other Republican, who actually made the motion to suspend the rules Thursday evening, against which a point of order (again made by Reid, asserting that his own motion was “dilatory” under Rule 22…) was immediately raised. Yes, several Republicans had, in accordance with Rule V, filed notice the day before that they intended to make such motions to suspend, in hopes of having their amendments to S. 1619 (the currency bill) considered on the floor, but if my explanations below are correct, they were never going to get that opportunity absent unanimous consent to do so – because Harry Reid had the amendment “tree” filled from the moment the motion to proceed to S. 1619 was agreed to Tuesday, until Reid made his move to change Senate precedent Thursday evening (that is, both before and after cloture was invoked on S. 1619 Thursday morning). ["Tree" refers to the chart diagram that illustrates the necessary parliamentary sequence for offering amendments to legislation pending before the Senate.]

    There was so little public discussion on the floor about last Thursday’s move (what little did occur took place after the vote), that no explanation or recitation of the specific Rule 22 precedent that was being challenged and overturned was publicly proffered. But as Harry Reid undoubtedly knew, if, in fact, such a post-cloture motion to suspend the rules for the purpose of proposing an amendment (which is akin to a unanimous consent request to do the same) in fact qualified as “dilatory” under Rule 22, his point of order was a wholly-unnecessary move, because Rule 22 precedent already “requires” the Chair to rule any such dilatory amendment out of order, without prompting from the floor (notably, no such ruling had been made). In addition, existing precedent under Rule 22 decrees any post-cloture “non-germane” amendment out of order, if any Senator makes a point of order against it.

    So presumably all that Reid, or any other Senator, had to do to deep-six without a vote 6 of the 7 Republican amendments (the 6 admittedly non-germane amendments that Senators were hoping to offer via the motions to suspend), was to make a point of order as to their lack of germaneness, that the Chair would have sustained – without requiring any appeal or vote to overturn existing Senate precedent. But, notably, it appears that even that step was not necessary Thursday for the Democrats to avoid voting on these motions to suspend, because, with the tree filled by Reid, it was necessary for the Republicans in question to first receive unanimous consent before their motions to suspend post-cloture would be in order for the purposes of offering an amendment, as indicated by a parliamentary inquiry that Mitch McConnell made Thursday evening. [The response to McConnell's inquiry was: "The PRESIDING OFFICER. Once an amendment slot is available, the motion to suspend is in order."]

    In other words, absent unanimous consent, none of these, or any other, amendments had been able to be called up pre-cloture, because Reid filled the amendment tree on Tuesday immediately after the motion to proceed to S. 1619 had been agreed to. Likewise, as indicated by that response to McConnell’s parliamentary inquiry, absent unanimous consent, none of these amendments were in order to be called up – this time by motions to suspend – post-cloture either, because the tree was still filled. Whereas, when the tree is not filled – as should be the normal course of events – then, unlike the situation Thursday (with the tree filled), unanimous consent would not be required before a Senator could make such a motion to suspend to offer an amendment post-cloture, as things stood before Thursday’s change in Senate precedent.

    So because Reid had filled the tree, Reid was the only one able to make the motion to suspend, in Coburn’s name, that he made Thursday evening – as excerpted in the diary – without unanimous consent. Before he could do so, Reid first had to “withdraw” at least one of his pending amendments that was helping to fill the tree. And that’s exactly what Reid did when he started this stunt at 6:33 p.m. Thursday: Reid first partially unfilled the tree – withdrew his own second-degree nonsense blocking amendment to make an amendment slot available – and then immediately made a motion to suspend the rules for the purpose of proposing a Coburn amendment to S. 1619, in order to then make a point of order against his own motion to suspend. [Is it really "in order" under Senate precedent to make a "point of order" against yourself...?]

    So on top of everything else that flows from Reid’s grossly-undemocratic abuses of power in blocking Senate floor amending, no Republican was independently going to be able to make a motion to suspend post-cloture without first receiving unanimous consent to do so. That power only exists – like the pre-cloture, regular order power to amend – when an amendment slot is available – that is, when the tree is not pre-filled by nonsense amendments designed only to prevent the Senate from legislating in public.

    Thus, the Senate precedent that was created, without debate, by the majority Democrats Thursday evening, 10/6, in effect permanently “filled the tree” post-cloture for all future legislation, blocking consideration of any and all amendments for which the Senate has not already given its unanimous pre-cloture consent for their sponsor to be allowed to pierce the Fake Quorum Call long enough to simply offer them on the floor for a vote.

    Note that of the five measures that were pending first thing Thursday morning, for the sole purpose of “filling the tree” to block Senate floor action on S. 1619, only the first-degree Reid amendment No. 694 remained pending Monday, in advance of Tuesday’s scheduled vote, at about 6:00 p.m., on final passage of S. 1619. [Details are in the comment section of my diary.]

    Yet, even though there was [Monday, 10/10] a (second-degree) “amendment slot available” for S. 1619 (because Reid withdrew his amendment No. 695 Thursday evening, and didn’t subsequently replace it) – making it seemingly in order for any Senator to make a motion to suspend the post-cloture rules to offer an amendment for that slot, without first obtaining unanimous consent – the fact that the Democrats overturned one or more (still-unspecified) Senate precedents Thursday evening (for highly-partisan reasons and in a highly-partisan manner) means that if and when such a motion to suspend were to be made before 6 p.m. Tuesday, the Presiding Officer, unprompted, would now be obliged to rule that motion out of order as “dilatory.” [Nevertheless, if I'm Senator Hatch, say, who has a serious and substantive "germane" amendment to S. 1619 that he would really like to have considered by the Senate, I'd make that motion to suspend Tuesday anyway, if I got the chance (and had already complied with Rule 5 by providing notice of an intent to make such a motion), in an effort to force some substantive public debate about what happened Thursday, and why, and to appeal the Chair's "dilatory" ruling, to attempt to reverse Thursday's unnecessary, damaging, partisan change in Senate precedent.]

    Finally, just to demonstrate how Harry Reid himself routinely plays fast and loose with Senate procedure, when it suits his own purposes (which have little to do with democratic debate or legislating), note that late Thursday, just before adjournment for the weekend at 10 p.m. – with the Senate still technically in the midst of post-cloture consideration of S. 1619 (the currency bill), meaning that, under the rules of the supermajority-invoked cloture process, S. 1619 “shall be the unfinished business to the exclusion of all other business until disposed of” – - Reid asked for and received unanimous consent to, in effect, suspend (without notice) Rule 22 (“notwithstanding the provisions of rule XXII”), so that he could:

    1. Make an unrelated motion to proceed to S. 1660 (some version of the White House-authored American Jobs Act);

    2. Immediately file a supermajority cloture motion (signed by 17 Democrats) “to bring to a close debate” on his just-proffered motion to proceed to S. 1660 (plus ask for and receive unanimous consent for a vote on said cloture motion at about 6:30 p.m. Tuesday, though the Senate is scheduled to convene for the week at 2:00 p.m. that day, which would normally require the cloture vote to be held at 3 p.m.); and

    3. Then withdraw his motion to proceed to S. 1660;

    All of which Reid successfully did late Thursday, 10/6/11, hours after his ugly partisan manipulation of Senate precedent, without receiving a single objection from any Senator.

    • pow wow says:

      The following addendum completes the record as far as I’m able to discern it to date, with regard to what Senate precedents did, and did not, allow before Senate Democrats moved, without debate, to change those precedents Thursday evening, 10/6/11 (my lengthy related diary, containing pertinent links and formatting, should now be linked at my name):

      ADDENDUM to preceding comment, added by 10/12 edit: In rereading the “Congressional Record” dialogue, describing which Republican amendments Democrats would allow on the floor for a vote, that immediately preceded Reid’s 6:33 p.m. motion to suspend the rules Thursday evening, it appears that Mitch McConnell understood the Parliamentarian to be telling him, in response to McConnell’s referenced parliamentary inquiry (Mr. McCONNELL. “At the end of cloture, would it require consent to offer motions to suspend?”), that once the 30 post-cloture hours of debate had finished tolling on S. 1619 (Friday or Tuesday), any Harry Reid nonsense amendment(s) still filling the tree would either have to receive a vote, or be withdrawn (as Reid withdrew his first-degree amendment No. 694 Tuesday just before the vote on final passage of S. 1619). And therefore that, at least potentially (I deduce, given the majority’s deliberate failure to provide clear, factual, public explanations on the floor Thursday), anyone who could have obtained the floor just after Reid’s amendment(s) had been disposed of (freeing amendment slots), which would have been immediately before the vote on final passage of S. 1619, would have had the opportunity to make a motion to suspend Rule 22, for the purpose of proposing an amendment, and be in order to do so without first obtaining unanimous consent. Yet even if that was the accurate parliamentary interpretation, and feasible, before Thursday’s change in Senate precedent (and I’m not exactly sure how it would’ve played out given the way that the Fake Quorum Call suspends floor business), by then all post-cloture time for debate would have expired, and all non-germane amendments apparently could have been easily ruled out of order by a simple point of order that would be sustained by the Chair [in accordance with existing precedent, although it's possible that a vote on the motion to suspend might necessarily precede a point of order against an amendment (in which case, that's a consistent change in precedent that I'd probably support, if needed to close a loophole, except when the Majority Leader's filled the tree)]. And if so, only the germane Hatch amendment motion to suspend would have been in order for a vote under existing precedent – needing 67 votes simply to allow a post-cloture vote on the merits of the amendment – in advance of the final passage vote on the underlying bill (S. 1619).

      Arguing against the viability of that scenario, though, is the following categorical language from Rule 22 itself, which seems to call into question what I just described as McConnell’s evident understanding of the Parliamentarian’s 10/6 reply to him, not to mention the possibility of any motion-to-suspend-the-rule action in the sliver of time between the ‘emptying’ of the tree by the Majority Leader and the vote on final passage: “After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins.”

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