Yogi Berra once warned, “You’ve got to be very careful if you don’t know where you are going because you might not get there.” That advice might well be given to Senate Democrats and Republicans as they careen toward a third conflict over reforming the filibuster in less than a year.
Republicans created this crisis by returning to a strategy of obstructing President Barack Obama’s nominees. At immediate issue are the confirmations of Rep. Mel Watt (D-N.C.) as director of the Federal Housing Finance Agency and attorney Patricia Ann Millett to the D.C. Circuit Court. Both thus far have been blocked by filibusters in the Senate. The GOP’s filibuster of Millett is especially galling because it is a part of a strategy to prevent the president from filling any of the three vacancies on the important appeals court. They are making the transparently absurd argument that filling these seats constitutes “court packing.”
Democrats are responding by rolling out the now-familiar threat to invoke the “nuclear option” — a parliamentary sleight of hand that Joe Biden back in 2005 called “a lie about a rule.” Unfortunately, he has recently been quoted as having said at a fundraiser, “I think it’s worth considering.”
The vice president knows better. As a senator, he was crystal clear, calling the nuclear option “a fundamental power grab by the majority party.” Biden’s views are critical because he, as presiding officer of the Senate, would be called upon to ignore its rules and precedents, and the almost-certain advice of the parliamentarian that ending debate requires a two-thirds vote. He would be asked to rule that debate can be ended and the rules changed at any time by a simple majority vote, a break with more than 200 years of Senate tradition. Soon, such a Senate would resemble the House, where the majority exercises strict control, debate is limited and amendments are often not permitted.
Many on the left openly call for ending the filibuster entirely. No senator has been openly willing to take this position. Senate proponents of the nuclear option claim they wish to make only moderate changes to address GOP abuse of the filibuster. This ignores the inevitable. Majorities do what majorities do when they can: They take control. This is a slippery slope so slick that there is no return.
And the slope is getting slippery already. In advance of this session of Congress in January, Senate Democrats argued that the nuclear option could be used only on the first day of a new session. In fact, the majority leader kept the Senate technically in the first “legislative day” for several weeks (by recessing the Senate instead of adjourning it) while negotiations about rules changes proceeded. This left open the exercise of the nuclear option if the negotiations failed. The assertion then was that reformers wanted only to make small changes in filibuster rules. The showdown ended when both parties agreed to adopt several moderate changes to the rules.
In July came nuclear option crisis 2.0. Republicans were blocking a number of Obama’s executive branch nominees. Again, some Democrats wanted to go nuclear. Since it was inconveniently no longer the first day of a new session, they simply dropped the first-day requirement. They asserted, however, that they wished to eliminate the filibuster only for presidential executive branch nominees. This second rules crisis ended in a bipartisan compromise that has led to the confirmation of a number of the appointments in question.
We now face nuclear option crisis 3.0. This time, the focus is mostly about judicial nominations. The nuclear option, it is argued, should be used to prohibit filibusters not only on executive branch nominations but judicial nominations as well. These were left out in July because federal judges serve for life. Democrats, although currently in the majority, were divided about risking the possibility of future Republican presidents working with Senate Republican majorities to stock the courts, including the Supreme Court, with more conservative judges.
We only narrowly averted a nuclear option crisis 4.0. Last month, Republicans appeared to be preparing to block legislation to open the government and lift the debt ceiling. The leading proponents of the nuclear option began calling for its use to change the rules and thwart such obstruction — an unprecedented expansion of this unusual parliamentary ploy to legislative matters.
The nuclear option has never been used, nor should it be. Democrats should back away from that slippery slope before they make a decision they may later regret.