The Return of the ‘Nuclear Option’

by Duncan Currie

The first “legislative day” of the 112th Senate began at noon, but it will technically extend through January 24, when members return from their two-week recess. Writing in the Washington Post, New Mexico Democrat Tom Udall has argued that on Day One of a new Congress, Senate rules “can be changed under a simple, rather than two-thirds, majority.”

Call it the return of the “nuclear option.”

Senator Udall hopes to abolish the practice of secret “holds” and also significantly revamp the filibuster process. Normally, such actions would have to clear a 67-vote hurdle. But since the Senate has constitutional authority to determine its own rules, Democrats could use a parliamentary maneuver to implement rule changes with only a bare majority.

In other words, they could “break the rules to make the rules,” says Martin Gold, a former GOP Senate counsel who literally wrote the book on all things procedural. The Udall gambit “is not unconstitutional, but it is unprecedented and unwise,” Gold adds. “The Senate rules have always continued from one Congress to the next.” Political scientist Robert Dove, who served as Senate parliamentarian from 1981 to 1987 and again from 1995 to 2001, agrees: “The Senate rules have never been changed on opening day and not without debate,” he told Fox News.

Charges of hypocrisy are flying on both sides, which is understandable. Back in 2005, when a Democratic minority was blocking several Bush appellate-court nominees, many GOP senators wanted to eliminate judicial filibusters through a majority vote. Their preferred strategy became known as the “nuclear” or “constitutional” option. In the end, the bipartisan Gang of 14 fashioned a compromise that allowed certain nominees to receive a floor vote but also preserved the 60-vote threshold for cloture.

Six years ago, Republicans were lamenting that the judicial-confirmation process was broken, and Democrats were defending the filibuster as a vital bulwark of liberty. Today, Democrats are complaining that filibuster abuse has made the Senate dysfunctional, and Republicans are warning against an erosion of minority rights. There’s no question that the frequency of filibusters has increased dramatically. But this trend must be viewed in context. Senators have two distinctive rights, says Gold: the right to debate and the right to amend. “When Senator Reid files cloture motions before debate has even begun, he is truncating both of those rights.” The Democratic majority leader has also repeatedly thwarted GOP legislative amendments by “filling the tree.”

Gold stresses that the 2005 Republican nuclear-option proposal was narrowly tailored to address a single issue: the filibustering of judicial picks. The Udall plan, by contrast, would use the nuclear option to change the rules regarding all filibusters. Of course, if one truly believes the Senate has been crippled by obstructionism, extraordinary measures may seem justified. But columnist Ruth Marcus raises an obvious practical concern for Democrats: If they “succeed in establishing that the rules are open for change by majority vote, what happens if Republicans win a Senate majority in 2012? Democrats have 23 seats to defend that year compared with 10 for Republicans. Anyone want to bet the mortgage money on the outcome?”