The Nuclear Option

March 1, 2010

Again, the point of this piece, as with other items I write from time to time, is less about the substantive matter at issue (in this case health care reform, again), but about political process, in general, and the filibuster concept specifically.

In ancient times, the Senate being the grand chamber of the Congress, composed of those esteemed gentlemen who were appointed by state legislatures, not elected by the people, consisted of only 26 members.  These elite folk determined that, unless 60 % of them voted to limit debate, any senator should have the right to speak at his discretion to fully explicate his position.  Over time, the filibuster came into play as a method for individual senators to utilize this rule to stop the chamber from actually voting on a particular matter the passage of which was abhorrent to those individual members.  As a matter of respect for their membership, cloture (the cutting off of debate) was rarely ever put to a vote as this was a sign of disrespect in a chamber were the appearance of respect was part of the fabric.  In the second half of the 19th century, as certain issues become more and more controversial, the possibility of filibuster became something of a weapon wielded by the minority to force the majority to compromise.  Actual filibusters remained rare.

For those of you old enough to remember the Nixon and Johnson administrations, you may recall that there were actual filibusters.  When the Civil Rights Act when to the floor of the Senate, Strom Thurmond actually tried to stop the passage by exercising his right to talk indefinitely.  Eventually he gave up and the Act was passed by less than the supermajority needed to cut off debate.  However sometime in the Reagan years, the concept of “notice of intent to filibuster” came into play and if a senator gave notice of intent to filibuster, a bill was tabled unless sixty senators voted to limit debate.  Thus was born the policy of requiring a 60 senator vote at the outset of debate so that the senate did not take up its precious time debating a matter on which there would be no vote, i.e. the threat of a filibuster on any bill was taken so seriously that the Senate evolved into requiring a 60 vote majority to pass almost any legislation.

After a while this became an intolerable obstruction to the day to day business of the Senate and a compromise was reached through  Budget Bill.  Under this compromise, matters which related to the budget efforts to reduce the deficit would be exempt from the filibuster rule.  (Interestingly, Senate Rules which provide the right to filibuster also allow for their amendment, including amending the provisions relating to the filibuster, without the right of filibuster or the need for a cloture vote to bring an amendment of those rules to a vote.)  As a result, for a number of years, the senate has regularly used this process, called “Reconciliation” to avoid the need for a cloture vote.   Examples of this include amendments to the Medicare and Medicaid programs, the creation of the CHIP program and its revision to create the SCHIP program and on and on.  Interestingly, this process has often been used by the Republicans and Democrats alike when the cloture process has created an insurmountable hurdle to the need to bring a matter to a vote.  While this process has been used a number of times by both parties over the last generation, its use remains relatively infrequent.

In the Bush 43 years, when it became clear that George W Bush would have an appointment to fill a vacancy on the supreme court, the Democrats raised the prospect of a filibuster if there was dissatisfaction with the conservative background of a nominee.  When the possibility of a filibuster of a Supreme Court nominee surfaced, the Republican majority in the Senate threatened to amend the Senate Rules to prohibit filibuster with respect to judicial nominees, the so-called “Nuclear Option”.  (Remember this could be done with a simple majority because the filibuster right does not apply to debates relating to amendment of Senate rules.)  While this amendment to the Senate rules was avoided by a compromise worked by the “gang of 14”, seven senators from each of the two parties, the possible death knell for the cloture rule has been a ghost haunting Senate process ever since.

And along comes  a special election in Massachusetts which drops the Democratic majority to less than 60/40 and so, effectively, Democratic legislation  is subject to  filibuster.  And here we are with a Health Care Reform Bill being held hostage by the ‘notice of intent to filibuster’ and the ensuing result that the Senate has again devolved into the need for a supermajority to get major work accomplished.   And here we are again with the notion of utilizing the reconciliation process which is exempt from the filibuster possibility and the need for a cloture vote  to end it.  And here we are again with the minority Republicans shouting foul at the possible use of this process when the Republicans  have used the reconciliation process for its own benefit in the past.

All of this is wonderful demonstration of the double edge nature of U. S. politics, of how the filibuster is alternatively a great political weapon for first one party in the minority and then the other, and of how reconciliation is a tool for first one majority and then the other.  What troubles me, however, is how little of all this is actually understood by the electorate as a whole and how politicians can in one year use one of these processes as a weapon or tool and then decry its use when roles of majority and minority are reversed.  I am reminded of an episode of the Jay Leno show and his “Jay Walking” segment during the “nuclear option” debates over  judicial nominees in which he asked people on the street what a filibuster was.  The answers, while funny in a humorous sense, are quite disturbing when you realize the potential for political manipulation it suggests.

Please share your thoughts on the process.

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