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.

But Senate Republicans maintain that killing the filibuster altogether may be in the crosshairs of majority Democrats who have been equally rueful about its use to block legislation. With 45 members, Republicans have a sufficient number of lawmakers to gum up the works.

“Such a departure from precedent would dilute the minority rights that differentiate the Senate from the other body,” said Sen. Thad Cochran (R-Miss.). “It also opens the door to applying this same rule to debate on judicial nominations, as well as the legislative process.”

Eliminating the filibuster in regard to legislative matters may not be in the offing anytime soon – bills passed in the Senate have to gain passage in the House as well and Republicans control that chamber with an iron fist. But it’s a step that can be taken in the future.

Roberts and others insist that further action against the filibuster – which can be achieved by a simple majority – places minority rights at further risk.

“Before today, there was only one house of Congress where the majority has total control,” Roberts said. “Now there are two. We have become the House. By its action, the majority has ensured that for many years to come, members will not have any rights beyond those which the majority is willing to grant.”

Some lawmakers, like Sen. Bernie Sanders (I-Vt.), maintain the rule change doesn’t go far enough, asserting that it should cover legislative debates as well. But he acknowledged that it constitutes “a step in the right direction toward ending dysfunction in the Senate.”

“Most Americans grew up believing that in America the majority rules,” Sanders said. “They also believe that this country deserves a Senate that is not dysfunctional and unable to address the needs of the American people. Unfortunately, in recent years the Republican minority has engaged in an unprecedented level of obstructionism. They have used the filibuster hundreds of times to delay or block the president’s nominees and to stop legislation from even being considered.”

But Sen. Chuck Grassley (R-Iowa), ranking member of the Senate Judiciary Committee who has led the opposition to Obama’s appointments to the D.C. Circuit – claiming the court’s relatively small workload doesn’t necessitate additional judges – warned that the president and Senate Democrats are “willing to do whatever it takes to achieve their partisan agenda.”

“Changing the rules of the Senate in this way was a mistake,” Grassley said. “But if the last several years have taught us anything, it’s that the majority won’t stop making these demands and we can’t give in to these constant threats. Sooner or later, you have to stand up and say ‘enough is enough.’ But, if there is one thing that will always be true, it’s this: Majorities are fickle. Majorities are fleeting. Here today, gone tomorrow.”

“So the majority has chosen to take us down this path, the silver lining is that there will come a day when the roles are reversed,” Grassley said.