Why the nuclear option is justified, and why the Democrats should go the whole hog

“Tit for tat” is good strategy; trying to get just a little bit pregnant is not.

Senate Republicans have decided to use the power of the filibuster to make it impossible for the President to fulfill his sworn duty to “take care that the laws be faithfully executed.” They don’t like the law creating the Consumer Financial Protection Bureau, so they’re promised to block a vote on any nominee to head the Bureau until the law is rewritten to their specifications. They dislike the idea that workers might be protected from arbitrary actions of their employers, and have refused to allow votes on the confirmation of members of the National Labor Relations Board; save for the President’s recess appointments – under court challenge – that agency could not function at all, which would deprive workers any avenue to vindicate their legally guaranteed rights.

It now appears that Republican obstructionism has gotten to the point where even some of the old Senate bulls on the Democratic side have decided to give partisanship and patriotism priority over institutional pride, and allow Harry Reid to move forward with the “nuclear option” the Republicans threatened to use against judicial filibusters in 2005.

There’s no polite way to put this: the nuclear option is cheating. The Senate rules, adopted at the beginning of each session, provide that the filibuster rule can be changed only with a 67-vote super-majority. Adopting such a rule is within the constitutional powers of the Senate. (There’s a claim that since the Senate is a “continuing body,” with only a third of its membership replaced each session, the old rules are binding on the each new Senate, the old rules remain binding on each new Senate, but that interpretation would give a transient Senate majority the power to permanently alter the Constitution, which can’t be right.) So there’s no way, within the rules of the Senate, that the Democrats can impose majority rule in mid-session. But (as the Texas Senate Republicans just demonstrated in the Wendy Davis abortion filibuster) any ruling of the chair, no matter how transparently wrong, can be sustained by a simple majority. And that’s Reid’s plan. He’s going to propose a rules change, Joe Biden as the President of the Senate is going to over-rule clearly valid Republican procedural objections, and (apparently) there are going to be 50 votes plus Biden’s casting vote to sustain that false ruling. Hey, presto! No filibuster for Executive-Branch nominees.

Is the cheating justified? I think it is. When a minority abuses its procedural rights with the stated intention of making it impossible for the government to function as the laws provide, there’s a strong case for extraordinary measures. Such measures should not (in Jefferson’s words) be undertaken “for light and transient causes;” a functioning republic of shared and divided powers, such as the one the Framers left us, depends on habits of forbearance among political actors: the prudent refusal to press every possible advantage to the maximum. But ever since the Gingrich Revolution, an increasingly insane Republican Party has prided itself on its lack of such forbearance, most recently demonstrated by the decision of a one-vote Republican majority on the Supreme Court to gut the Voting Rights Act. At some point, the Democrats need to play “tit for tat.”

Naturally, Republicans threaten retaliation. If the Democrats act now to make Executive Branch nominations confirmable by a simple majority, they will do the same, should they ever regain a majority, with judicial nominations and ordinary legislation. I say, “Bring it on!” in the long run, the progressive cause is strengthened by having fewer veto players.

It’s understandable that some Senate Democrats want to solve the current crisis with as little damage as possible to their own power and that of their successors. That’s why Reid plans to move ahead with a rules change covering executive nominations only. But the Republican threat of retaliation – the one sort of Republican utterance that is invariably sincere – makes the proposed strategy of limited rules change incoherent. Since the Republicans will retaliate against a limited rules change with a comprehensive rules change, Democrats will never again get any benefit from being able to use the filibuster. So, in a rational world, having been forced to use the nuclear option to move the current batch of blocked confirmations they’d use it on everything at once. There’s no point in getting a little bit pregnant.

Alas, Reid seems to have the votes for a partial reform but not for the whole thing. And I think he’s right to take half a loaf, if that’s all he can get, rather than no bread. But we will all live to regret the Senate Democrats’ failure to dare greatly.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

52 thoughts on “Why the nuclear option is justified, and why the Democrats should go the whole hog”

  1. Whenever I hear or read the phrase, “tit for tat,” I recall Dennis Miller’s comments:

    What is tat?
    Where can I get it?
    How can I exchange it for the other?

  2. I’m not convinced that cheating is justified. By chosing not to reform the filibuster at the start of the session, Democrats have placed themselves in a position where they have no good choices.

    My interpretation of Jefferson is that the desire to change the filibuster rules now (as opposed to changing them at the start of the next legislative session 18 months from now) is something that Jefferson would consider to be a “transitory cause.”

    1. Your comment is intriguing. I don’t understand though — is it less “cheating” if you do it at the beginning of the session? I remember hearing about this in December or January, and then it not happening. Would Reid somehow *not* need 67 votes at the start of the next session? Confused!!!

      1. The most detailed article on what is variously known as the “nuclear option” or the “Consititutional option” is the article by Martin B. Gold & Dimple Gupta, available at http://faculty.washington.edu/jwilker/353/353Assignments/Gold_Gupta_JLPP_article.pdf

        The article lays out three means of changing the Senate rules:

        1) The article asserts that the Senate, like the House, is not a continuing body. This means it has to adopt its rules at the start of every session, and at that time can adopt whatever rules it wants via a majority vote.

        2) The Senate can change the rules by having the presiding officer interpret the rules in a particular way, and having that interpretation upheld by a majority of the Senate.

        3) The Senate can change the rules by adopting and following a standing orders which override the rules.

        Rather than naming these separately, Gold and Gupta refer to all of these as the “Consistutional Option”. In practice, discussions of the “nuclear option” involved using the second approach, because the Republicans pushing for the nuclear option didn’t want to wait until the next Congressional session to overcome Democratic filibusters. (The third approach, involving standing orders, is only discussed briefly by Gold and Gupta, and has been mostly ignored since.)

        The problem with the second approach is that it is clearly illegitimate when used to change the rules, as opposed to clarifying them. Senators know that a 3/5 majority is required to break a filibuster under the current rules. They can vote to support an interpretation that says otherwise, but what sort of authority would such a vote have, given that the Senators would be plainly lying.

        The first approach is problematical, mainly because tradition is against it. It says that the Senate has to adopt new rules at the start of each session, but as far as I know, the Senate has never actually done so. Supporters of the first approach assert that what the Senate has done is to implicitly adopt the rules of the preceding session by acting under them.

        The point made by Kleiman is that if the Senate can pass the filibuster rule and make it binding on future session of Congress, that gives the Senate the power to bind future generations in other ways as well. Don’t like tax increases? Pass a Senate rule saying that the Senate shall not consider any bill that increases taxes. Don’t like entitlement cuts? Pass a Senate rule saying that the Senate shall not consider any bill reducing entitlements. And in each case, include a clause saying that the rule cannot be modified without the unanymous consent of the Senate. If the Senate is indeed a continuing body, then a temporary majority can pass whatever policy they think best, and concurrently pass Senate rules to prevent a future majority from reversing the policy. Regardless of tradition, as Mark Kleiman says, “that can’t be right.”

  3. With the House firmly under the control of the crazies there’s no need to push right now for the total nuclear option if that will cause trouble in the Democratic caucus. Sure, simply eliminating the filibuster altogether would be better, but it’s not as though ordinary legislation will benefit from such elimination any time soon. Judicial confirmations, however, really should be included; the dominance of right-wing lunatics over the federal judiciary is a pressing problem and one that can be fixed without going through the House. Even if the Democrats were to somehow retain the capability to filibuster judicial nominations under a future Republican President and Senate they’ve shown themselves incapable of doing any meaningful good with that power. From Priscilla Owen to Sam Alito they’ve allowed through the most extreme of the extreme, judges who make Clarence Thomas look like a liberal icon of intellectual heft in comparison.

  4. Dear Mr. Kleiman: It is my belief that Senate Democrats don’t want to touch the filibuster because they want to preserve their powerlessness, not their power. With the filibuster, many of them are free to vote for the bills their voters want while knowing they have no chance of becoming law and upsetting the interests of their campaign donors. But then, I’m a cynical person.

    1. It’s not at all an implausible or merely “cynical” hypothesis. The political scientist David Mayhew called the public vote for something that was not intended to pass “position taking” (with respect to bills that members didn’t want to pass for whatever reason, campaign finance or something else) and political scientists tend to think this happens all the time.

      But one would need a further argument, testing this against rival hypotheses, to show that this is the main reason why so many Democrats are leery of reforming the filibuster. The alternative, leaner hypothesis that senators (especially from smaller states) inherently like the ability to hold up important things until they get their way on unrelated matters that matter personally to them seems pretty likely to me.

    2. There’s a far more straightforward reason as to why Senate Democrats are leery of getting rid of the filibuster. Quite simply, they are aware that they aren’t always going to be a majority, and they want the chance to have some leverage in case they end up a minority again.

      1. Nullification through procedural extortion cannot stand. I’m fully with Doc Kleiman on this one.

        Also: See Scott Lemieux’s withering rebuttal of “oh, gee, we might be in the minority some time”. I suspect the reason some Democratic Senators are not so enthusiastic is that such a reform will weaken their personal, individual power.

        1. See Scott Lemieux’s withering rebuttal of ‘oh, gee, we might be in the minority some time’.

          I did, it’s an argument as to why the filibuster is (in his opinion) bad, not an argument against the claim that I was making, which was that Democrats are understandably afraid of getting rid of the filibuster because they might need it, not because they want to be powerless.

          1. Should the Republicans regain the majority in the Senate, particularly while also holding the House, I foresee absolutely zero chance that they will respect any “holds”, fillibusters, procedures, etc, initiated by a Democratic minority. Zero. It will be the reverse nuclear option and the majority of the nation will be the targets.


          2. Last time that the Democrats were in the minority wasn’t that long ago, and the GOP action (when they really got frustrated) was to issue an ultimatum, for the Democrats to cave or the GOP would go nuclear. I expect that to happen again, and the Democrats to cave.

  5. The trouble is that the Republicans won’t have to wait until they have a majority in the Senate to retaliate. They can completely paralyze the Senate by withholding unanimous consent and forcing a roll call vote on everything, no matter how trivial. There was talk of the Democrats’ doing that the last time the nuclear option was threatened (back then, the Republicans were calling it the “constitutional option”).

    1. So? Constitutionally speaking, they aren’t supposed to be conducting business without a quorum anyway. I find it hard to be impressed with the threat to require Congress to behave lawfully. No, let me rephrase that: I’m not impressed by people who find that threat awful.

      Just provide every member with an electronic voting button, and abolish voice votes entirely. They’re nothing but a mechanism for hiding the fact that Congress illegally conducts business without a quorum.

      1. Unanimous consent and quorums don’t really have much to do with each other, except in the most tendentious fashion. I can’t think of any organization that I’ve ever been a part of that requires a quorum call for every single point of order.

      2. Who said anything about quorum calls? I was talking about forcing roll calls on every procedural step that is commonly done by unanimous consent. Please pay attention.

  6. I say, “Bring it on!” in the long run, the progressive cause is strengthened by having fewer veto players.

    The problem I’m having with “the long run” is twofold:

    (1) The massive number of CA progressives have the same number of Senators as the small number of conservatives in South Carolina.
    The Senate is an unjust body that mathematical favors rural America.

    (2) The Republican is much more entrenched and ideological pure. CA may will someday have a Republican senator. But SC?

    So I can see a minority rural party suddenly finding itself entrenched in the Senate for a long time.
    What’s wanting here is a full blown Nate Silver mathematical treatment of “the long run”.
    That would set me at ease.

  7. Perhaps the most disheartening thing about this post is the idea that an unreformed Republican party may take control of both the House and Senate. Is this truly a generational issue and the Republican fever dream will break and return to rationality and comity? I find it hard to believe that a crop nourished so on Fox News will ever be able to do so… is there any of significance on the right that believes in good governance, rather than the nullification of governance?

  8. What would LBJ do?

    I think hardball is called for, but I can’t approve of cheating. Maybe the next Defense appropriations bill should spend a whole lot less money in Kentucky, Texas, and South Carolina. It shouldn’t be hard at all to take a list of expenditures in those 3 states, and find a bunch of things that can be cut without affecting national security.

    Let them filibuster that.

  9. I don’t follow this issue closely. But I thought there was an option to just make filibusters “real” — as in, the person has to actually stand there and talk, a la James Stewart. What happened to that?

    1. A real filibuster is actually somewhat risky for the majority. The minority may, after all, be filibustering in a cause which could be popular if given media exposure, and a real filibuster makes for a great media event. Very difficult to cover one without relating at least a little of what the minority is saying, since nobody else is speaking during one.

      So the minority with a potentially popular cause has both the capability to block the legisation, AND a ‘bully pulpit’, a real filibuster can advance their cause in TWO ways.

      By contrast, if the minority with a popular cause goes for the faux filibuster, they temporarilly block the legislation, but are not given a free PR opportunity to enhance their side’s strength.

      Fundamentally, the filibuster is an opportunity for unrestrained debate. You don’t have to read the telephone book, if you actually have something relevant to say. You can score points and inform people instead. This is pretty scary to the side that has the numbers, but not the confidence they would win a public debate.

      1. I guess that’s why Republicans have been using that useful real filibuster so much then.

        Oh, wait…

        1. IMO, the main difference between the Democratic and Republican parties, is that the former’s office holders are faithful to positions they dare not honestly espouse, while the latter’s are unfaithful to positions that are fairly popular. In practice this isn’t a very big difference, is it? They both are lying about what they’re trying to do.

          So, yeah, neither side wants to risk actual, public debate, though perhaps for marginally different reasons.

          But filibusters aren’t necessarily driven by the caucus leadership, the most corrupt members. When Rand Paul did his recent real filibuster, I think he annoyed the Republican leadership almost as much as he did the Democratic.

        1. And me too!

          Only I’d go a step beyond Brett, and point out that a real filibuster is risky to both sides. The majority is at risk for enabling (forcing) the minority to make their case forcibly and publically and, in the process, potentially win more public support than they used to have. Alternately, the minority is at risk if they are merely being obstructionist, without a real case to present. In that case, by having to stand there and filibuster, thus holding up all other action in the Senate, they are exposing their obstructionist (rather than legislative) objectives. It remains to be guessed whether the public will find such action to be principled (think Wayne Morse), or merely partisan obstructionism.

          In any case, the riskiness to both sides probably accounts for why there were so few filibusters, and why they were only done for really important issues, back in the day.

          1. Agreed. It’s just not something someone would do lightly. You’d look stupid to do it for a silly reason.

    1. The end justifies the means is a fundamental principle of liberal ideology. It’s basic utilitarian reasoning: You can justify any means, if the end it accomplishes is good enough. It’s deontologists who regard the end justifying the means as a condemnation. If you’re a consequentialist, likely some species of utilitarian, your response to that attack would be to ask, “What else could justify means?”

      IIRC, this was one of the fundamental divides underlying political conflict in America identified in Sowell’s excellent book, “A Conflict of Visions”. It is, for instance, why liberals regard conservatives as racists for demanding equal treatment under the law, while conservatives regard liberals as racists for demanding equal outcomes even if it requires unequal treatment: Liberals view equal outcomes as an end that justifies discrimination to achieve, conservatives regard discrimination as a prohibited means that can’t be justified by desirable outcomes.

      1. Brett: now this, I don’t think I agree with. But I don’t have time to go down the rabbit hole of one of these (in my opinion, waste of time) “world view” arguments. I don’t think I’m a utilitarian … but we’d have to have a specific topic in order for me to know. ; >

      2. And here I thought that utilitarianism was a basic principle of “free-market” libertarians.

      3. Actually, we liberals tend to think that conservatives define “equal treatment” in a spectacularly simplistic and egregiously self-serving manner.

        1. Yes, as treating people equally. While conservatives think liberals just don’t care about it at all, and openly favor treating people differently.

          1. Please, do we really have to dredge up that Anatole France quote yet one more time?

          2. Do I really have to point out, yet again, that it actually IS an important principle, for the poor, that everybody has to live under the same rules? Because if you abandon that rule, it ain’t the poor who’ll get the better rules. It’s the poor, the powerless, who actually benefit most from the rule of law, it limits any heel that would grind them down.

      4. Laughable. “Equality of opportunity” is the fallback position for conservatives after Jim Crow. They would prefer laws that restrict where black people can live and keep them from voting. Alas, the Supreme Court said the constitution doesn’t allow that and the federal government was eventually willing to back that up. Conservatives are for “equality of opportunity” only where they know past history and present prejudice will ensure inequality of outcome. That’s why the big push in conservative states to implement voter ID laws and make the rules and resources for voting different in minority-heavy districts. It’s the ultimate in utilitarian politics.

    2. I think the principle here is choosing the lesser of two evils. Senate Dems have put up
      with years of obstruction, and it has reached the point where they can’t appoint enough
      judges to do the work, and they can’t fully implement the law of the land, e.g. with the CFPB.
      Dems won the White House; they won the Senate; they should get to make the appointments in
      accordance with the expressed will of the people. I don’t like the trickery involved in
      changing the rules, but it seems a lesser evil than allowing the Republicans to continue
      to prevent confirmation of nominees who have majority support.

      1. But given Obama’s lazy approach to appointments, the obstruction you’re complaining of is in the White House, not among Republicans. Obama has had as much success getting the nominees he has bothered to nominate confirmed, as Bush did. He’s just been extremely lazy about nominating.

          1. Anything to avoid coming to grips with the argument, right, Cranky?

            “Bored” suits you better? I’m not the only person to notice that Obama hasn’t made a big priority of nominating people to fill these vacancies. His low number of confirmations was due to a lack of nominations, not the failure rate once they were nominated.

        1. Sloppy reasoning and invalid inferences, as per usual. If I expect my nominees to be rejected, am I lazy for not nominating? A lower number of nominees offered is consistent both with Obama being “lazy” about submitting nominees, and the nomination process being more difficult and less likely to be successful than previously, because people adjust their behavior when their expectations change.

    3. The entire point of legislative rules is to enable good governance. When they get in the way of good governance instead, it’s wrong not to reform them, even if it takes cheating to do so. Of course it doesn’t take cheating to do so in this case, because it’s also wrong to forget that the Constitution exists and that the rules in the Constitution take priority over rules enacted by the Senate. If the Constitution says that the Senate can set its own rules and some Senate rule says the Senate can’t set its own rules, then the Constitution wins out.

      There is absolutely nothing wrong in reforming the Senate filibuster rules by majority vote. It’s not even cheating; it’s simply adhering to the Constitution.

    4. “Shorter Mark Kleiman: two wrongs make a right; the end justifies the means.”

      How about ‘payback is a b*tch’?

  10. The point that ending the filibuster as applied to legislation gets the Democrats zero as long as the Republicans control the House is valid. It would be better right now, though, if the proposed change covered judicial as well as executive appointments. I can predict one thing, though: if any of the five conservative Supreme Court justices should die while Obama (or any other Democrat) is in office, and the Democrats still control the Senate, the Republicans will filibuster ANY Democratic nominee forever. To fill out the Court, eliminating the judicial appointment filibuster would probably become necessary.

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