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.

National Journal
Patrick Reis
Nov. 7, 2013, midnight

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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