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A Post-Nuclear Senate Would Be a Wasteland A Post-Nuclear Senate Would Be a Wasteland A Post-Nuclear Senate Would Be a Wasteland A Post-Nuclear Senate Wou...

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Congress

A Post-Nuclear Senate Would Be a Wasteland

Limiting the minority's power to filibuster might ease a nominee's path, but it won't end dysfunction. It will make it worse.

(The Garden of Earthly Delights by Hieronymus Bosch)

photo of Patrick Reis
November 7, 2013

It's 2015 and the Senate has gone to hell.

Having freed himself from the filibuster by detonating the "nuclear option," Senate Majority Overlord Harry Reid stalks the halls of the Capitol, passing bills at whim and smiting colleagues at will. Mitch McConnell has gone into hiding, while his fellow Republicans wage a guerilla resistance and dream of taking the chamber—and taking revenge. On the brink of extinction, the chamber's final few moderates cower in the basement, sporting fingerless gloves and burning historical documents for warmth as they listen to Jay Rockefeller and Lamar Alexander tell tales of glory days gone by.

OK, so that's all nonsense. The "nuclear option"—a proposal to change Senate rules to disallow filibusters on executive nominees but still leave the option open in all other cases—would not send Congress spiraling into dystopia, but that doesn't mean it's a good idea.

 

Utopian fantasies aside, paring back the filibuster would do real harm, trading one brand of Senate dysfunction for a deeper one and further widening the country's already-yawning partisan chasm in the process.

Boiled down, the pro-nuclear caucus' argument amounts to: eliminating the filibuster for executive branch nominees will protect the president's right to pick his administration, give government agencies more stability, and skip logjams that leave the Senate with less time to legislate.

But all of that assumes that the minority, fresh off a "nuclear" strike, would roll over without retaliating. It's an assumption that strains credulity, and even Democrats aren't buying it.

"I'm not so sure how Sen. McConnell would retaliate, but I can guarantee you that he will," said Jim Manley, a former top Reid aide.

McConnell, or any other minority leader, would have plenty of options.

Stripped of a voice on executive branch nominees, the minority could take the nominee fight up the chain, using the filibuster to block commissioners, justices or even a chairperson for the Federal Reserve. And if they didn't want to go that far, they'd have plenty of avenues to add yet more deliberation to the world's most deliberative body.

Much of the Senate's business—including the approval of many nominees—these days is done via unanimous consent agreements, where measures are approved without a recorded vote. Angry over the nuclear option, the minority could make those a thing of the past. They could also vote down motions to proceed and force the chamber to go through 30 hours worth of debate post-cloture on every measure, noted Sarah Binder, a senior fellow at the Brookings Institute.

And there's every chance Republicans would find another, more-extreme filibuster replacement that nobody has thought up yet.

Sound far-fetched? Look at Wisconsin, a filibuster-free state where a simple majority is enough to pass measures in both the assembly and state senate.

That left a Democratic minority in the state Senate with little recourse in 2011 when new Republican Gov. Scott Walker, boosted by a majority in both chambers, was moving budget legislation that would gut public unions' ability to engage in collective bargaining.

Livid over the legislation but without a way to block it, 14 Senate Democrats resorted to a desperate gambit: they fled to Illinois and went into hiding. By leaving the state, the legislators took advantage of a then little-known rule that required 60 percent of all senators to be present for a vote on certain types of legislation.

The senators remained out-of-state—despite facing daily $100 fines and an (ultimately unsuccessful) bid by Walker for law enforcement to bring them home—for nearly a month, delaying the bill while Madison, the state's capital, exploded into a mass-protest zone against the law.

Does anyone believe that in the U.S. Senate, a body with two-plus centuries of rules and traditions, the minority couldn't find a similar such bit of arcana to exploit?

In Wisconsin, Walker and his fellow Republicans were able to dodge the quorum requirement by stripping fiscal provisions from the bill, eventually passing Act 10 through the Senate by an 18-to-1 margin. But instead of the bipartisanship that nuclear option proponents promise rules reform would deliver in the U.S. Senate, the law has turned Wisconsin into a perpetual political war zone.

Walker faced a bitter recall race, as did a host of state senators on both sides of the aisle. And among the general population, the partisan divide widened. One in three respondents to a Marquette University law school poll in 2012 said they had stopped talking about politics with a friend or relative.

Inside the state senate, the bitterness wrought by Act 10—as well as the ensuing flight of the Democrats—remains. "Some of the Republican friends I had were not as friendly," said Sen. Dave Hansen, one of the 14 Democrats to skip town in 2010.

Back in the U.S. Senate, the possibility of the nuclear option—or even the threat of it—has already raised Republican ire, especially after the Senate beat the doomsday clock this summer with a bipartisan deal.

"It would be really bad form," said Tennessee Republican Bob Corker. "If every time someone has concerns about nominees the nuclear option comes up, you might as well be at a 51-vote threshold."

Michael Catalini contributed to this article.

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