WASHINGTON — When Harry Reid retires in 2017 after serving for 12 years as Senate Democratic leader, the calculating and blunt-spoken Nevadan will leave behind a legacy that could end up transforming the United States far beyond his wildest dreams — or worst nightmares.
For now, his contributions to passing Obamacare — an arduous task that required the votes of all 60 Democratic senators in late 2009 — stand as his most far-reaching achievement, paving the way for more than 16 million Americans to gain health coverage. It was the sort of bill that presidents had been trying to pass for nearly a century, and most credit its enactment to President Barack Obama.
But in the long-term, the former boxer who became known for his iron-fisted rule over the Senate as majority leader may be remembered most for deploying the so-called “nuclear option” on Nov. 21, 2013, to abolish the filibuster for most nominations, and arguably setting the stage for killing the 60-vote threshold entirely.
What had held the filibuster together was the convention that Senate leaders wouldn’t weaken it on a partisan basis. Reid blew that norm to shreds, bypassing the two-thirds majority required under regular order for a rule change and establishing the precedent for a future majority to take the same step and end what’s left of the filibuster — on legislation and Supreme Court nominees.
“I do fear that the use of the nuclear option by Harry Reid and the Democrats has put the Senate on the slippery slope to the eventual elimination of the filibuster,” said Rich Arenberg, a professor and former Senate Democratic aide who wrote a book called “Soul of the Senate” in defense of the filibuster. “The Republicans, after bitterly complaining about Harry Reid’s actions, now are showing no interest in restoring the interpretation of the rule. They appear to prefer waiting for a Republican president so they can exploit the new interpretation of the rule.”
The process is already underway. Within weeks of Republicans retaking the Senate this January they pulled a dramatic about-face by floating proposals to scrap the Supreme Court filibuster. House Republicans including Majority Leader Kevin McCarthy (R-CA) endorsed ending the filibuster for legislation. Those ideas are indefinitely on hold as Republicans recognize they have little to gain by taking the far-reaching step while President Barack Obama still holds the veto pen. But it is revealing that now-Senate Majority Leader Mitch McConnell (R-KY) has ruled out restoring the filibuster as he had vigorously demanded before the midterm election.
“It’s hard to put the toothpaste back in the tube,” long-serving Sen. Richard Shelby (R-AL) said after Republicans won the majority, according to Politico.
The potential impacts of a majority-rule Senate on the country as a whole are hard to overstate. In an era of ideological polarization along party lines that shows no signs of abating, the supermajority requirement may be the single greatest (perhaps the only) obstacle to one party transforming the country. The difference between needing 60 and 51 Senate votes to pass legislation can mean the difference between the status quo and a radically different America.
“My sense is that future leaders could look back to Reid’s move and reason that the institution would survive a seemingly radical change to the filibuster rule,” said Sarah Binder, a congressional scholar who teaches at George Washington University. “I could imagine a constellation of forces — unified party control, a remarkably obstructionist minority party in a polarized era and a majority party intent on securing a particular policy change — that yields a majority committed to going nuclear over Rule 22.”
Imagine a Republican presidency with majorities in the House and Senate, a very plausible outcome in 2017. Politics aside, the filibuster would be the only thing standing between them and remaking the nation in the image of Rep. Paul Ryan (R-WI), from voucherizing Medicare to repealing Obamacare to massively cutting taxes and domestic spending for the middle class and poor. Maybe even privatizing Social Security. The pressure from conservative advocates to go “nuclear” would become overwhelming and perhaps irresistible to GOP leaders.
Senate Majority Leader Mitch McConnell of Ky., center, speaks about Keystone XL with Sen. John Hoeven, R-N.D., left, and Sen. Lisa Murkowski, R-Alaska, right, on Capitol Hill, Jan. 29, 2015. (AP Photo/Jacquelyn Martin)
Months before 52 Democrats voted to change the filibuster rule in 2013, McConnell warned that “there would be no rational basis” for a future majority not to kill the filibuster entirely if Reid scrapped it for nominations. “There is not a doubt in my mind that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything,” he said.
Conversely, if Democrats were to keep the White House and secure both chambers of Congress, every progressive item would be on the table if there was no filibuster to overcome. Activists would re-up their demands for single-payer health care and breaking up big banks. A Social Security expansion might be in the cards. Progressive ideas with strong Democratic support like regulation to fight climate change, legalizing the estimated 11 million undocumented immigrants and raising the federal minimum wage would likely be a layup.
Then there are judges. Democrats made great use of the rule change to muscle through the largest number of circuit and trial court judges confirmed in a congressional session since the 1970s. The impact has been huge in helping Obama reshape the federal judiciary for the next generation. Conservatives are already noticing an impact on the law. It also makes it easier for future presidents to exploit the move to appoint deeply ideological judges — perhaps even Supreme Court justices — without any need to secure bipartisan support.
Binder added that even without the filibuster, “the Senate would remain constitutionally distinct from the House along several dimensions — including the difference between state-wide staggered elections and single-member districts up for re-election at the same time every two years. Those differences won’t change and could be consequential for preventing the Senate from becoming ‘just another House.'”
Reid will be long gone from Congress before the most far-reaching impacts of his move can materialize. But there can be no doubt that they will be traceable back to his iron-fisted move that no majority leader has ever taken before. Of course, the decision did not occur in a vacuum. Republicans had elevated the use of the filibuster to unprecedented heights, complaining that they wanted more opportunities to offer amendments and debate bills. That caused Reid to control the Senate more tightly and led to an arms race.
“It’s time to change,” Reid said in 2013, before hitting the nuclear button. “It’s time to change the Senate before this institution becomes obsolete.”
Senate Minority Leader Mitch McConnell (R-KY) was livid. “You’ll regret this,” he warned, “and you may regret this a lot sooner than you think.”
For now, Reid (like his fellow Democrats) has expressed no regrets. Maybe he eventually will. Or maybe he’ll come to view it as the best decision of his career.