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Nuclear Option May Come Back to Haunt Democrats

Last month, the U.S. Senate defeated a bill that would have approved construction of the controversial Keystone XL pipeline, which is strongly opposed by environmentalists. The vote was 59 to 41. A clear majority supported the pipeline bill, which had been earlier passed in the House of Representatives with a bipartisan 252-161 vote.

Democrats have rediscovered the usefulness of the filibuster. The bill was defeated, in effect, by a Democratic filibuster. While technically this was not a cloture vote, since the 60-vote threshold was created by a unanimous consent agreement, this was done in recognition of the fact that it would take the use of the burdensome cloture process in order to pass the bill.

It seems likely that Republicans will have a filibuster-proof majority to support the Keystone XL pipeline when the Senate revisits the issue next year. Since all 45 Republicans in the current Senate voted for the pipeline, it is likely that all 54 Republicans in the new Senate will do so also (53, if Mary Landrieu survives her run-off election). Five of the Democrats who voted with the Republicans are lame ducks and will not be returning to the Senate. This leaves nine Democrats who can be expected to vote in favor, bringing the total to 63 votes. Under the Senate’s cloture rules, ending a filibuster requires 60.

The White House has indicated the president is leaning toward a veto. Overriding a presidential veto would likely take 67 votes (two-thirds of the senators present and voting, a quorum being present). So, assuming the president vetoes, Democrats may still have the votes to sustain it.

The Keystone XL pipeline vote, however, lays bare several issues regarding the Senate rules that are simmering.

Last November, the Democrats used the “nuclear option” in order to create a new precedent that the meaning of the cloture rule’s words “three fifths of the senators duly chosen and sworn” is a simple majority.

This was applied solely to presidential nominations other than a Supreme Court nomination. Fifty-three of the 54 Democrats who voted against cloture on the pipeline (including Rhode Island’s senators, Jack Reed and Sheldon Whitehouse) supported that inexplicable interpretation of the plain words of the rule.

Why should the words mean something different in this case? And those Democrats who have called the supermajority requirement “unconstitutional” should explain why it’s acceptable to use an unconstitutional weapon to block the pipeline.

I support the filibuster and I oppose the pipeline, but I think the reliance on flawed means to meet short-term ends is dangerous. Republicans will probably not need to nuke the rule to get the pipeline, but how about drilling for oil in the Alaskan wilderness or repealing the Affordable Care Act? Are Democrats inviting the GOP majority when it takes over the Senate to interpret any rule it wishes at any time in any way that it wishes?

With President Obama and his veto pen still in the White House for the next two years, Republicans may be unwilling to eliminate the filibuster. This would be a radical step for limited gain since the president can kill bills he deems objectionable. But the White House will not remain in Democratic hands forever.

For their part, Republican senators who bitterly complained about the Democrats’ use of the nuclear option have not said whether they intend to restore the interpretation of the rule in the new Congress. Incoming Majority Leader Mitch McConnell has indicated that he will leave the decision to his caucus.

Some senior Republicans have made clear they think their side should now exploit the new precedent, not repair it. Senator Orrin Hatch, R-Utah, who will be the new president pro tempore, has declared, “We should not return to the old rule. We should teach those blunderheads that they made a big mistake.…

Frankly, I intend to win with our candidate for the presidency in 2016, and we will give them a taste of their own medicine.”

Last November, Senator McConnell said of the Democrats’ action, “It’s a sad day in the history of the Senate.” He went on to call it a “power grab.” Will the GOP now grab the power itself?

Is it too much to believe that such inconsistency by both parties could lead to a Senate where no rule is safe from an overzealous majority at any time?

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