Op-Ed

Did the U.S. Senate Just Go Nuclear?

Sarah A. Binder

I sat down tonight to read a little of Mr. Speaker!,
Jim Grant’s new, breezy biography of House Speaker Thomas Reed. “Czar
Reed” was the author of “Reed’s Rules”—the package of House rule changes
that broke the back of minority party obstruction in the late 19th
century. But, alas, jarred by such headlines as  “Democrats Invoke ‘Nuclear Option’ in the Senate,” I put down Mr. Speaker
and sat glued to C-Span for a recap of today’s Senate floor kerfluffle
in which Majority Leader Harry Reid and Minority Leader Mitch McConnell
sparred (somewhat) angrily over the Democrats’ move to quash Republican
amendments to a pending currency manipulation bill.

What exactly happened? In brief (well, Senate-style brief), Senate
rules prohibit non-germane (unrelated) amendments on the Senate floor
after cloture has been invoked on a bill. In other words, unless all
senators consent, senators can only offer germane amendments once debate
has been limited on a bill. McConnell and Reid appear to have been
negotiating an agreement that would have allowed Republicans to offer
seven non-germane amendments post-cloture. But then a GOP
senator moved to suspend the rules (which requires a two-thirds vote)
so that he could offer non-germane amendments, including at least one
related to the president’s jobs bill. Frustrated with the Republicans’
tactics, Reid raised a point of order that the Republican motion was
dilatory. Under Senate rules, dilatory motions are not in order once
cloture has been invoked.  The parliamentarian advised the presiding
officer to rule that the motion was in order, the presiding officer did
just that, and a vote ensued on whether or not to sustain or overrule
the chair’s ruling.  Appeals of the chair require only a majority vote
to pass, and Reid mustered all the Democrats save Ben Nelson to vote to
overturn the chair. In practice, this means that the Senate tonight
set a new precedent, by which I mean a new interpretation of
the Senate cloture rule:  Under cloture, a motion to suspend the rules
to offer a non-germane amendment may now be declared dilatory. (If I’ve
not quite nailed this down precisely, it’s because no one should try to
disentangle Senate floor procedure after midnight. Please do correct
my errors!)

So…did Reid’s move tonight constitute “going nuclear,” as many
reporters (or their editors) rushed to declare?  Did this rise to the
threat in 2005 that a GOP majority would set a
new precedent that Rule 22 would no longer apply to judicial
nominations—thus banning the filibuster of judicial nominees?

I think the “nuclear” label overstates what happened tonight.  The
Senate did move by majority vote to set a new precedent, but this is
hardly a revolutionary act. The closest I can come to good data
(recall, after midnight) on appeals of the presiding officer comes from
this conference paper by Chris Den Hartog and Nate Monroe (see also their new book). 
For the postwar period, they show that the presiding officer is
overruled roughly a quarter of the time his/her rulings are appealed. Without breaking down the rulings, it would be hard to judge whether any
of the Senate’s decisions set new precedents that limited the rights of
individual senators on the Senate floor.  But my point is simply that
the Senate does periodically move by majority vote to establish new ways
of doing business—even when that path is at odds with the
parliamentarian’s reading of precedent. (On the broader politics of
such “reform by ruling,” see Wawro and Schickler’s filibuster book or my work on the nuclear option with Steve Smith and Tony Madonna.  See also Steve’s Brookings paper on the Senate’s broader struggles with legislating.)

More generally, I think it’s important to keep in mind that the
trend since the 1970s has been the gradual tightening of post-cloture
practices, such as limiting the time for post-cloture debate and
enhancing the ability of the Senate to prevent back-door “post-cloture”
filibusters.  I suspect that from Senator Reid’s perspective, clamping
down on efforts to offer non-germane amendments post-cloture was
consistent with this general pattern of trying to make the Senate hew
more closely to the intent of the cloture rule. Of course, from
Senator McConnell’s perspective, the move was a violation of Reid’s
commitment at the start of the Congress to open up amending
opportunities for the minority party. “We are fundamentally turning the
Senate into the House,” said McConnell.  “The minority’s out of
business.”

Judging from Reid’s comments at the end of the day, I wouldn’t be
surprised if the leaders attempt another procedural handshake—with the
majority perhaps backing off tonight’s ruling. Regardless, I doubt that
the Senate minority party is really out of business.

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