What happened in the Senate on the nuclear option 

Posted: 2:04 pm Thursday, November 21st, 2013

By Jamie Dupree

We have heard about it for almost ten years. Republicans threatened to go “nuclear” during the Bush Administration, but backed down. Democrats also threatened to change the filibuster rules for months, and then finally did it just before a Thanksgiving break.

So, what changes? And what doesn’t?

1. Most nominees won’t need 60 votes

Under this change in Senate precedents, the Senate can force final action on any Presidential nominee – except for the U.S. Supreme Court – with a simple majority vote. No longer will 60 votes be needed to shut off debate on a nomination. That pretty much means anyone nominated by a President who can make it out of committee and onto the Senate floor should be able to win approval, unless the President’s own party turns against that nominee.

No longer will the minority party be able to block a lot of nominations to try to extract concessions by an administration on another issue.

2. Why not the Supreme Court? What about regular bills?

Democrats decided that while they wanted to “go nuclear,” they didn’t want to completely wipe away the filibuster on everything. So, a 60 vote super-majority could still be needed to force final action on Supreme Court nominations – though many wonder if that will be changed sooner or later.

As for legislation, this action does not change anything on how the filibuster can be used on regular bills. But like the Supreme Court example, some wonder if that’s going to happen down the road, which would essentially make the Senate into another version of the House of Representatives. Some Democrats and liberal-leaning outside groups say that’s the next logical move.

3. Wait – didn’t both parties switch arguments?

For us curmudgeons up in the Press Galleries of the U.S. Capitol, this is a classic legislative fight in which the opinions of the two parties mainly changed after power changed hands at the White House. Back in the Bush years, Democrats filibustered Republican judges, and GOP Senators threatened the nuclear option. But a group of Senators – the “Gang of 14” – negotiated a bipartisan deal to prevent a change.

Now, eight years later, Democrats did a complete turn against the filibuster (they loved it while in the minority) while Republicans suddenly embraced the filibuster that they had railed against while in the majority.

It isn’t hard to go back to 2005 and find quotes by Republicans that were much like the quotes from Democrats today. And you don’t have to look hard to find people like then-Sen. Joe Biden (D-DE) arguing against the nuclear option then. The only difference was that Democrats were in the minority then and Republicans are in the minority now. One of those who changed his mind – President Barack Obama, who argued against the nuclear option while he was in the Senate, and also voted to filibuster a Bush Supreme Court nominee.

Democrats simply argue that the scale of the obstruction is much worse by Republicans now – thus, this change was needed.

4. What was the big fuss about with this change?

Usually, rules changes can only be made with a vote of two-thirds of Senators – 67. But, Democrats used a parliamentary move in which the Chair ruled that the regular filibuster rules did not apply to nominations (other than for the U.S. Supreme Court) – so that only had to be approved by a simple majority of Senators.

Your tip of the day is this – while it sounds like an actual rules change, it’s really only a change in the Senate “precedents” that govern the intricacies of Senate floor debate. You can read more about the rules of the Senate at http://www.gpo.gov/fdsys/pkg/GPO-RIDDICK-1992/content-detail.html.

It’s not the first time such a change has been made in the precedents, but there were three Democrats who refused to go along with the change, worried that when Democrats are in the minority one day, the option to filibuster judges and executive nominees won’t be available.

5. Does this change really matter?

For most people, the debate over Senate rules and procedure is far from easily understood. For those who watch the legislative battles here, it is a landmark change in the way the Senate works.

This is basically the third major change in the Senate’s rules in the last 100 years. The first was near the end of World War I, when the Senate decided to approve a rule that allowed Senators to end filibusters by a two-thirds vote. It was first used to approve the Treaty of Versailles in 1919.

The next major change came after Watergate, when Democrats – helped by Vice President Nelson Rockefeller – moved to reduce the number of votes needed to force an end to debate from 67 to 60 votes. To me, that change made the Senate more partisan, because it is easier to get to 60 votes than it is to get to 67; you don’t have to compromise as much at 60 votes.

Now, all you need is a simple majority for all nominees, except for the U.S. Supreme Court. It isn’t hard to imagine a scenario where the filibuster goes away for Supreme Court nominations and even legislation.

We’ll see if something like that happens before my time expires in the halls of Congress.

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