From The Hill:
“Next week Harry Reid is expected to start calling for votes on a range of executive branch nominees. I expect if he can’t get cloture, he will ask the Senate parliamentarian for a change in the rules so he can get the executive branch nominees confirmed,” said Nan Aron, president of Alliance for Justice and a member of the Fix the Senate Now coalition.
Personal and Confidential
The Honorable Elizabeth MacDonough
United States Senate
I am writing you today about a matter of some delicacy. As you know, I have been having a lot of difficulties with the Senate, and with other things, and I am very certain that it is not your policy to add to those difficulties. So I am hoping you can help me out here.
As we are painfully aware, there is a Senate rule that allows a minority to block almost anything it pleases, including nominations that the President sends us. The Senate adopted this rule a long time ago, even before I was in the Senate. About the time Senator Byrd, may he rest in peace, came to the Senate, I think, though it is hard to believe that anything happened that long ago.
Specifically, Senate Rule XXII provides that to “bring to a close the debate upon any measure, motion, [or] other matter pending before the Senate” requires a vote “in the affirmative by three-fifths of the Senators duly chosen and sworn.” This sounds like mumbo jumbo to your average Joe, but you and I know that it means that I need 60 votes to shut up the “wacko birds” and get anything done around here. Liz, I don’t have 60 votes. I have 55. Sometimes a couple more, sometimes a couple less, but not 60. You see the problem.
People often ask me why, if this rule is such a big problem, we don’t just change it. The answer, as you well know, is that the framers of Rule XXII thought of that. (By the way, it drives me crazy that the Senate Rules always have to be written in roman numerals- I am sure that this was Byrd’s idea). Rule XXII says that to close debate on a “measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting.” That means that to change the rules, I need 67 votes.
Liz, I don’t have 67 votes. I have 55. If I had 67, I wouldn’t need to change the damn rule in the first place. Talk about your Catch XXII! (See what I did there? Get it?)
Fortunately, our country was founded on the rule of law, which means that we only have to follow the law when Justice Kennedy says so. Being a lawyer, you know that the Constitution provides that it is Justice Kennedy’s job to “say what the law is.” So if a law is bad, we can take it to Justice Kennedy, mumble a few words like “due process” or “equal protection,” along with a bunch of names of cases (preferably ones written by Justice Kennedy), and he will make it disappear.
Some folks think that we can take Rule XXII to Justice Kennedy and he will make it disappear. Right now Common Cause is working on that very idea. But my aides tell me that this is a long shot. Sometimes Justice Kennedy can’t say what the law is because of a lack of “standing” or the “political question” doctrine, or because the words were mumbled in the wrong order. Sometimes one of the other justices will even say what the law is instead of Justice Kennedy.
If the President wants a law to disappear, he has other options. He can go to the Office of Legal Counsel, which has a whole bunch of lawyers to tell the President “what the law is.” If there is a law standing between him and what he wants to do, they can usually find a legally-sounding way to make the law disappear. Or the President can just exercise his “executive discretion” to send the law on vacation for a while. But I am not the President and I don’t have an OLC.
I do, however, have something called the “nuclear option.” This, I must say, is not a very good name. It sounds bad. And when I first heard about the nuclear option as a way to make Rule XXII disappear, I may have overreacted a tad. I said something like this:
For people to suggest that you can break the rules to change the rules is un-American. The only way you can change the rule in this body is through a rule that now says, to change a rule in the Senate rules to break a filibuster still requires 67 votes. You can’t do it with 60. You certainly cannot do it with 51. But now we are told the majority is going to do the so-called nuclear option. We will come in here, having the Vice President seated where my friend and colleague from Nevada is seated. The Parliamentarian would acknowledge it is illegal, it is wrong, you can’t do it, and they would overrule it. It would simply be: We are going to do it because we have more votes than you. You would be breaking the rules to change the rules. That is very un-American.
To be honest, I am not sure what set me off like that. As I said, it may have been the term “nuclear option”- it just sounds wrong. Reminds me of Yucca Mountain and all that. Or maybe it had something to do with being in the minority at the time. I don’t know, this was 2005, a long time ago.
Since then, I have warmed up to the nuclear option quite a bit. “Breaking the rules to change the rules” is such a negative way to put it. It’s really just exercising the power to “say what the rules are.” And that’s as American as apple pie and gay marriage.
Plus which a lot of respected legal scholars have said that the nuclear option is just fine. A bunch of them wrote a letter to the Senate last December, explaining “the overwhelming consensus of the academic community that no pre-existing internal procedural rule can limit the constitutional authority of each new Senate to determine by majority vote its own rules of procedure.” Yeah, I know, more legal mumbo-jumbo. But the bottom line is that most law professors agree we can change the rules without 67 or even 60 votes.
The only problem is that they said that a “new Senate” could change the rules with a simple majority, but only on the first day of the new Congress. To be honest, this never made a lot of sense to me. Professor Akhil Amar, who is a really smart guy (I know this because he has told me so himself, several times), called this the “Cinderella” theory of the Senate– the rules could only be changed on the magic first day of the new Congress.
But let’s be honest- we may like to pretend that the law is logical and objective, but at the end of the day its really like figuring out who gets to sit at the “cool table” in high school. It’s a popularity contest. If the “overwhelming consensus” of law professors is that the Senate turns into a pumpkin on the first day, who am I to argue? Plus it seemed like a good idea last December, with the first day of the new Congress around the corner.
The problem is that the first day has come and gone, and I have to use the nuclear option now. So I need people to forget not only about what I said in 2005, but about what all those law professors (and quite a few Senators) said six months ago.
This is where you come in (you probably figured I would get around to that eventually). I confess that when my aides told me you held the key to the nuclear codes, so to speak, I was a bit befuddled. “You mean the hot girl who works for Alan Frumin?,” I asked. They reminded me that Alan Frumin is gone, and you are now the Parliamentarian. And that I should never, ever, refer to you as the “hot girl” again. Ever.
So many rules. Sigh.
Anyway, as I was saying, Liz, I need you to be my OLC, my own Justice Kennedy. I need you to “say what the rules are” and make Rule XXII disappear.
Now I know, technically speaking, that’s not your job. The Vice President presides over the Senate, and he is the one who actually makes parliamentary rulings. Unfortunately, the Vice President has made some rather negative comments about the nuclear option himself. When he was still in the Senate he said this:
This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party . . . Quite frankly, it is the ultimate act of unfairness to alter the unique responsibility of the Senate and to do so by breaking the very rules of the Senate . . . Put simply, the nuclear option would transform the Senate from the so-called cooling saucer our Founding Fathers talked about to cool the passions of the day to a pure majoritarian body like a Parliament.
Of course, this was also back in 2005 (what a coincidence, huh?), and a lot of things have changed since then. Still, it may be a little awkward for him to rule that the nuclear option is legal after coming out so strongly against it. But if you explain to him that the latest legal thinking is that the nuclear option is just peachy (I don’t think you will have to get too in depth with him), that gives him what he needs to gracefully “evolve” on the issue. You should give him a script to follow, as he can be a bit of a loose cannon.
Now you may be concerned that the nuclear option will cause some institutional damage to the Senate, and I understand that. But think about it this way- how does that compare to the institutional damage that will occur if one day I just can no longer control myself when I see Senator Cruz in the Senate dining room, and I start pounding him until I wipe the smirk off his stupid face?
Look, I know that this puts you in a tough spot. If you rule against them, the Republicans will probably call you the “worst parliamentarian ever,” just as “my friend” Senator McConnell said I would be the worst majority leader. But this is not your first rodeo, so to speak. I am told you have handled some pretty thorny issues in your day, from counting electoral votes in the 2000 election to fielding emergency book requests at the Shaw Pittman library. After you have dealt with Fred Drasner and Marty Krall, Mitch McConnell should be a piece of cake.
So, in closing, Liz, I implore you to do the right thing. The nation is in serious trouble. The Senate is in serious trouble. I am in serious trouble. We need to go nuclear. We need to make Rule XXII disappear.
Very truly yours,