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Senate Democrats Employed the "Nuclear Option" to Change the Filibuster Rule

Updated on November 27, 2013

The Senate opted to use the nuclear option to enable the Senate to confirm executive and judical nominees

In an unprecedented move on Thursday, Senate Democrats invoked the so-called “nuclear option” to change (in part) the 60-vote filibuster rule, allowing the Senate to move ahead with the confirmation of presidential nominees with a majority vote. This extraordinary move has resulted in the outpouring of hostile and mournful commentary.

Senate Minority leader, Mitch McConnell of Kentucky, angrily accused Democrats of trying to distract from what he terms “the disastrous implementation of Obamacare” and warned Democrats that they will be sorry for changing the rule. “You’ll regret this, and you may regret it a lot sooner than you think,” he growled on national television, referring to the 2014 elections, when Republicans expect to gain the majority in the Senate. “The Democratic playbook is broken promises, double standards, and raw power. The same playbook that got us Obamacare has to end,” he continued. “It may take the American people to end it, but it has to end.”

Senator Rand Paul of Kentucky got ugly. Following the same talking points as McConnell, he raved: “Senator Reid is breaking over 100 years of precedence in order to get his way… [He] is a bully, dictating to the Senate.”

Other Republicans and conservative commentators lined up to turn attention from the rule-change to the Affordable Care Act. Among them are Ted Cruz, Rush Limbaugh, and a host of Fox News commentators.

President Obama stood before the nation by way of television and voiced his support for the filibuster change, noting that Republicans’ use of the filibuster is “a deliberate and determined effort to obstruct everything, no matter what the merits, just to refight the results of an election... for the sake of future generations, it cannot become normal.”

The list of persons, who lined up to bemoan and berate Senate Leader Harry Reid and Senate for changing the filibuster rule, is too long to recite—but the beat goes on.

The Filibuster Rule

The filibuster rule has a long history, dating back to the 1800s, when the term was applied to efforts to hold the Senate floor to prevent a vote on a bill, according to the United States Senate Art and History website. When the Democratic minority tried to block his bank bill in 1821, Henry Clay threatened a change the rule to allow the majority to close debate. However, it was not until 1917 that the Senate adopted a rule that would allow the Senate to end debate with a two-thirds vote, known as closure. The change was tested in 1919, when the Senate invoked it to end the filibuster on the Treaty of Versailles. Over the next 50 years, the Senate tried to invoke the rule to close debate, but a two-thirds threshold was too different to reach.

In 1975, the Senate, therefore, reduced the number required for closure to 60 votes, instead of 67. Eighty-two years later, the 60-vote threshold was questioned, because it was too difficult to achieve—and even subjected to much abuse. So the idea of the “nuclear option” was conceived—a mechanism whereby the filibuster could be averted.

The Nuclear Option

“The history of the nuclear option traces back to… Richard Nixon,” wrote Rick Ungar in his Forbes article. In 1957, when he was Vice President, Nixon wrote an opinion on the topic,” auguring “that the Constitution grants the presiding officer of the Senate …the authority to override Senate rules by making a ruling that is then upheld by a simple majority vote,” Ungar wrote. Therefore, “if the majority party wanted to do away with the filibuster rule and had the Vice President on its side, [it] “could stop the minority from filibustering the overriding of the filibuster rule by filibustering the effort to overturn it.”

The issue came up again in 2003 and Republican Senator Trent Lott of Mississippi named it the “nuclear option.” In 2005, when Republicans held the majority in the Senate, Senate Majority Leader, Bill Frist, called on then Vice President Dick Chaney to rule that Democrats’ blocking of President Bush’s judicial appointments was not consistent with the Constitution, according to Unger. But, he noted, that a group of Senators (half Democrats and half Republicans) brokered a deal in which Democrats would not filibuster presidential nominees except in “exceptional circumstances,” and Republicans would not use the nuclear option unless they believed Democrats were filibustering appointees on grounds that did not qualify as “exceptional.”

Since 2008, Democrats have threatened to us the nuclear option time and again, but each time it was averted—until now.

Reasons for Rule Change

The threat to use the nuclear option has been made by both parties, but both were skeptical about using it, because they knew that the other side will someday gain the majority. Ungar rightly said: “Clearly, Senators on both sides of the aisle are sensitive to messing with the filibuster rule, [because] ‘each side is all too aware that the opportunity for the majority to become the minority is always just one election away.”

What’s different this time? Some indicate that changing the 60-vote rule is “an idea whose time has come.” Senator Ben Cardin of Maryland released a statement Thursday saying, “Rules change [is] “a necessary step to fulfilling the Senate’s constitutional responsibilities.” He wrote: “The Senate is broken. Our rules of consensus and comity have been abused… I have been in the Congress [a] sufficient [number of] years to serve in the majority and [in] the minority. I understand the consequences of changing the rules, but what we are doing is returning to where the Senate can actually fulfill [its] Constitutional responsibilities.”

Senate Majority Leader Harry Reid of Nevada said: “It’s time to get the Senate working again, not for the good of the current Democratic majority or some future Republican majority, but for the good of the United States of America. It’s time to change the Senate before this institution becomes obsolete.”

The bottom line is that the time has come to change the 60-vote rule, because the Republicans, according to President Obama, is using the rule to “gum up” the system and block his nominations to the judicial and executive branches for no other reasons than to stop his presidency.

Senator Reid claimed that he had to force the procedure change because of the increased use of the filibuster since Obama took office in 2008. “There have been 27 closure votes on President Obama’s executive-branch nominees, including 11 in the last four months… And “for the first time ever, a nominee for Secretary of Defense was filibustered, Reid said, according Juliet Lapidos in her New York Times article entitled “Why Harry Reid had to Use the ‘Nuclear Potion.’”

Senator Lindsey Graham of South Carolina announced, on television, that he will place a hold on confirmation for all White House appointments, until his demand to question survivors of the September 2012 attack on the U.S. consulate in Benghazi is met.

The severely toxic atmosphere in the Senate, seemingly, left the Senate no other option than to vote to eliminate the filibuster on executive-branch and judicial nominees.

Consequences of Rule Change

What the rules change means is that presidential nominations for the judicial and executive branches will need only 51 votes for closure, in lieu of 60 votes—except for the nominees to the Supreme Court.

Specifically, Tom Cohen of CNN on Friday listed five ways the Senate will change as a result of employing the nuclear option. In essence, here they are: Senate gridlock will be eased, more judges will be confirmed, executive branch appointments will be more easily confirmed, rules and regulations under each administration will less likely be undone, and “thorny politics” are ahead, as Republican Senators retaliate.

Although the nuclear options did not change the 60-vote threshold completely, many experts express the belief that it is only a matter of time.

No matter how much pundits and politicians berate and bemoan Senator Harry Reid’s employment of the nuclear option, the reality is President Obama and future presidents—Democrat and Republican—will be able to hire the people they want in their administrations, so long as they are qualified.

And this is the way it ought to be, for elections have consequences.

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