Might 'Nuclear Option' Extend to Legislation as Well as Nominees?

WASHINGTON – Senate Republicans are concerned the chamber’s majority Democrats may attempt to further expand their power beyond the move to exempt most judicial and executive branch confirmation votes from attempted filibusters.

That step taken by Senate Democratic Leader Harry Reid, of Nevada, frustrated by GOP efforts to block the nominations of President Obama’s selections to fill three vacancies on the District of Columbia Court of Appeals, extends the tyranny of the majority over the minority, several lawmakers maintain, and may encourage Democrats to strip the utilization of filibusters on legislative actions as well.

“The rule change itself is less important than the manner in which it was imposed,” said Sen. Pat Roberts (R-Kansas), ranking member on the Senate Rules Committee. “Now that the majority has decided it can set the rules, there is no limit to what it or any future majority might do in the future. There are no constraints. The majority claims these changes are necessary to make the Senate function. If it decides further changes are needed, it will make them. The minority will have no voice, no say, no power. That has never been the case in the Senate--never.”

“Until now,” he said.

Sen. Lamar Alexander (R-Tenn.) agreed, maintaining the rule change is “the most important and most dangerous restructuring of the rules of the Senate since Thomas Jefferson wrote the rules at the founding of our country.”

The action, Alexander said, “creates a perpetual opportunity for the tyranny of the majority because it permits a majority in this body to do whatever it wants to do anytime it wants to do it.” The change represents “another example of the use of raw partisan political power for the majority to do whatever it wants to do any time it wants to do it.”

Sen. Richard Shelby (R-Ala.) called it a “drastic move” that “sets a dangerous precedent that could later be expanded to speed passage of expansive and controversial legislation.”

“If Democrats think that they deserve more power, they should earn it from voters at the polls in 2014,” Shelby said, adding, “make no mistake; today’s power grab is just the beginning.”

Minority use of the filibuster has long stuck in the craw of majority lawmakers who view it as an obstructionist tool. They note that the rule blocked civil rights legislation from being taken up in the upper chamber for years before a successful effort to overcome its implementation resulted in the Civil Rights Act of 1964.

Until Nov. 21, under Senate rules, a senator or a group of senators could delay consideration of any bill or nomination unless "three-fifths of the Senators duly chosen and sworn" -- usually 60 of the chamber’s 100 members – concludes debate through a process known as cloture. If cloture is invoked, a debate and vote on the matter at hand ensues.

Filibusters have become increasingly frequent over the decades as the two parties have grown more partisan. Reid and others have pointed out that there have been 168 filibusters of executive and judicial nominations throughout history -- half of them have occurred during the Obama administration. That ultimately led Reid, who has long opposed filibuster reform, to seek a change in the rules, excluding use of the filibuster to delay consideration of nominees but permitting its continued usage on legislative matters before the Senate.