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.