Senate Majority Leader Harry Reid is widely reported to be moving toward the “nuclear option,” a rules change by majority vote that would make it harder for Republicans to filibuster President Obama’s nominees. Don’t believe it. Past history strongly indicates that Reid will rattle the saber for a few days and then announce the latest in a series of entirely meaningless compromise agreements with Senate Minority Leader Mitch McConnell. That’s too bad, because the filibuster should be abolished entirely.
In a July 11 floor speech, Reid set the stage for filibuster reform. He acknowledged that he’d agreed earlier this year not to invoke the nuclear option—that any rules change he proposed would continue to require a two-thirds Senate majority, as it has in the past. Reid had made this pledge even though nothing in the Constitution, or in the U.S. Code, or in Supreme Court precedent tells the Senate how many votes it needs to change its own rules. (Nor do these three authorities require the Senate to permit filibusters in the first place.)
Reid’s pledge made it virtually impossible to change the filibuster rules, since the supermajority required to change Senate rules (67 votes) is even more onerous than the supermajority required to end an actual filibuster (60). Why did Reid ever cut this deal? Because, he said in his floor speech, McConnell had promised that “on the subject of nominations, Senate Republicans will continue to work with the majority to process nominations, consistent with the norms and traditions of the Senate.”
Reid now argues McConnell has broken that agreement, because Republicans have filibustered four nominees to President Obama’s cabinet (former Labor Secretary Hilda Solis, former Commerce Secretary John Bryson, Health and Human Services Secretary Kathleen Sebelius, and Defense Secretary Chuck Hagel). By comparison, Democratic senators filibustered only one cabinet nominee—Interior Secretary Dirk Kempthorne--during President George W. Bush’s two terms. (In fairness, it should be pointed out that the Democrats filibustered three other Bush nominees who only nominally were not members of the cabinet—two Environmental Protection Agency administrators and one U.S. trade representative.)
These examples would at first seem to suggest that the filibuster is not a very effective tool for obstruction, since every nominee mentioned in the previous paragraph ended up getting confirmed. But that’s only because the threat of a filibuster usually keeps nominees who lack support from 60 senators from coming up for a Senate vote at all. The best current examples are Thomas Perez, Obama’s nominee to replace Solis at Labor; Gina McCarthy, nominated to be EPA administrator; Sharon Block and Richard Griffin, nominated to the National Labor Relations Board, which will lack the quorum legally required to function next month if they aren’t confirmed; and Richard Cordray, nominated to be director of the Consumer Financial Protection Bureau, which may face a similar problem. (Block, Griffin, and Cordray received recess appointments ruled unconstitutional in federal court this past January. Senate Republicans make no secret that they don’t want the NLRB and CFPB to operate at all.)
Reid now plans to bring all these nominations immediately to the floor and in effect dare the GOP to filibuster them. If they do, Reid may go nuclear and have the Senate confirm them by simple majority. (McCarthy and Perez, McConnell claims, now have the 60 votes necessary under current rules; the others likely don’t.)
It's terrific that Reid is forcing the issue, but it's not clear McConnell violated his agreement with Reid, because the agreement was too vaguely worded to have any meaning to begin with. And even if the agreement did have any meaning, Reid had to know McConnell would violate it, because Reid and McConnell had struck a similar deal two years earlier that proved similarly worthless. In effect, Reid has used every conceivable excuse not to make meaningful changes to Senate Rule XXII, which governs filibusters and the cloture votes necessary to end them. (This year’s Reid-McConnell agreement was codified in a Senate resolution that made only the tiniest of tweaks.)
Reid would like to move Obama’s blocked nominees through the Senate, but it's fair to infer that he doesn't really want to eliminate the filibuster. In 2005, when the Senate majority (then Republican) contemplated eliminating filibusters just for judicial nominations, Reid, then Senate minority leader, had a cow. Such a change, he wrote in his 2008 book The Good Fight, would inexorably lead to eliminating filibusters altogether, “and that, simply put, would be the end of the United States Senate.” Can Reid’s views really have changed so much in five years that he now proposes doing something he once considered the U.S. Senate’s ruination?
The irony is that while the filibuster has indeed been used to gum up the workings of government to a shockingly unprecedented degree in recent years (by both Democrats and Republicans), it was never a tradition worthy of much respect. The House of Representative had it for awhile, then wisely jettisoned it. Prior to some ill-advised Senate rule changes in the 1970s, Senate filibusters required the dissenting senator to remain on the Senate floor and speechify. (Today, you just need 41 opposing votes.) That did limit their use somewhat, and a rules change that restored the “talking filibuster” would certainly be an improvement.
But the filibuster never had a distinguished pedigree. Southern Democrats used it (successfully) during the 1930s to prevent Congress from passing a federal law outlawing lynchings. Later, in 1957, Sen. Strom Thurmond—then a Democrat, later a Republican--used it (unsuccessfully) to prevent Congress from passing the Civil Rights Act of 1957. When traditionalists talk about the filibuster’s grand old days, the example they usually reach for is Jimmy Stewart’s filibuster in the 1939 movie Mr. Smith Goes To Washington. But as noted elsewhere, a truer pop-culture depiction of the filibuster’s effect was Billie Holliday’s rendition of the song “Strange Fruit,” recorded that same year (“Black bodies swinging in the Southern breeze/ Strange fruit hanging from the poplar trees”).
If Reid were to change Senate rules to allow the elimination or drastic reduction of the filibuster, the result would be a laudatory and necessary departure from one of the Senate’s worst traditions. But in all likelihood, he’s just bluffing.
Watch Reid and McConnell argue about confirmation delays, below: