Nuclear Option?! What Really Happened On The Senate Floor, And Why It Matters

October 6, 2011 5:31 p.m.

Did Harry Reid pull the nuclear option in the Senate Thursday night? That all depends what you mean by “nuclear option.” Reid did succeed in changing the Senate’s rules tonight, but in exceptionally narrow terms. And the only danger for Senate Democrats — as with setting any new precedent — is that an opportunistic future GOP majority will seize upon what happened Thursday as an excuse to make much bigger, broader changes to parliamentary procedure, perhaps even nixing the filibuster.

All day — and really all week — Reid and Senate Minority Leader Mitch McConnell (R-KY) have been involved in a procedural jousting match. McConnell’s goal has been to embarrass Democrats — to force a vote of some kind on the jobs bill President Obama sent to Congress weeks ago, and watch it go down in flames. Reid’s goal has been to thwart McConnell, and to call his own vote in the coming days on a modified version of Obama’s bill with broader caucus support. That will help Democrats make the case that Republicans alone stand in the way of the American Jobs Act.

Mostly this was about positioning. McConnell wants a version — any version — of the Obama jobs bill to fail with bipartisan opposition. He wants to upset Reid’s efforts to draw a sharp contrast between the parties over jobs. Knowing that Republicans will filibuster all versions of Obama’s jobs bills, Reid wants to make it clear in the public mind that it’s the GOP that’s preventing a bold jobs package from moving forward.After going back and forth for a couple rounds, detailed here and here, everything seemed to be set in stone. McConnell wouldn’t get his vote on Obama’s jobs bill directly, but he would use his prerogatives under the Senate rule to force a vote on what’s known as a “motion to suspend the rules” — an arcane tactic that requires a two-thirds vote for passage, and was destined to fail. McConnell, though, wanted this procedural vote to serve as a proxy for Obama’s jobs bill. If it failed, and if Democrats voted against it, Republicans could say Obama’s jobs bill went down with bipartisan support — a talking point they could use for months.

McConnell had the Senate rules on his side. His motion, however mischievous, was ruled in order. The stage was set for a vote. That’s when Reid whipped out an ace he’s had up his sleeve since he became majority leader — one that his liberal critics wish he’d used two years ago to end the filibuster and ram the Democratic agenda through the Senate without having to contend with frustrating supermajority requirements. Reid and 50 of his Democrats simply voted to overrule the parliamentarian’s decision that McConnell’s motion was in order. Presto, McConnell’s motion could not come to a vote, and Reid had avoided a political embarrassment — and eliminated a very small minority right in the Senate.

But this wasn’t just about checkmating McConnell. As he said in a statement late Thursday, “The Senate must have the ability to move forward on legislation that has broad bipartisan support. A small minority of senators cannot be allowed to bring bipartisan legislation, like a bill to end China’s job-killing, underhanded currency manipulation, to a grinding halt when 14 million Americans are out of work.”

To wit, after legislation has overcome a filibuster, only a very narrow set of germane amendments can come up for votes — unless the rules are suspended. Since Obama’s jobs bill is not germane to Chinese currency legislation, it was out of order, and suspending the rules was McConnell’s only way to force the issue. This thin reed of minority power has been ripped from its root, because of Reid’s play Thursday night.

Still, what Reid did operates on the same principle as the “nuclear option.” It is tactically the same maneuver Republicans threatened to pull in 2005 when they pushed to end judicial filibusters. But the issue at stake is much, much narrower — it ends a ploy that hasn’t been pulled successfully in decades, except to delay proceedings on the Senate floor and score political points.

And this is where timing becomes important. Reid has wiped out an extremely small minority right (technically, the right to force a vote on a motion to suspend the rules, after cloture has been invoked on a bill, to consider a non-germane amendment). But he’s done so at the nadir of Democratic power with Republicans strongly positioned to assume the majority in 2012. Republicans are furious about it. And now that Reid’s done something that hasn’t been done in at least 30 years — and may be unprecedented — a narrow GOP majority in 2013 could use it as cover to affect much broader changes to the Senate rules. Including, if they want, eliminating the filibuster.

If Republicans win the Senate in 2012, we all may be revisiting this odd procedural maneuver, but with much, much more at stake.

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