The Corner

Bipartisan Nuclear Option-Lite

In response to Majority Leader Harry Reid’s threat to change the filibuster rule, eight Senators led by John McCain (R., Ariz.) and Carl Levin (D., Mich.) have released a “bipartisan proposal to reform Senate procedures.” Their compromise counterproposal is almost as bad as Reid’s “nuclear option.”

Though only four pages long, it’s easy to get lost in the parliamentary minutia of the McCain-Levin proposal. (The other signatories are Chuck Schumer (D., N.Y.), Ben Cardin (D., Md.), Lamar Alexander (R., Tenn.), John Barrasso (R., Wyo.), Mark Pryor (D., Ark,), and Jon Kyl (R., Ariz.)) But a Senate staffer intimately familiar with Senate Rules pronounces the proposal “unworkable.” Moreover, he argues, McCain-Levin would set up a new procedure that would allow Reid to pass “any proposal with 51 votes.”

The staffer characterizes the proposal as “Nuclear Option-Lite.” It will create a new category of super senators who will be empowered to participate in the legislative process to the exclusion of rank-and-file members. This proposal may be worse than Reid’s because it would empower the leadership of both parties to the detriment of open debate and a free amendment process available to all members. Both the Nuclear Option and this new bipartisan proposal will destroy the deliberative function of the Senate and curtail extended debate and an open amendment process.

McCain and Levin propose adoption of a Standing Order, which can be adopted by a simple majority, that would give the majority leader (and only the majority leader) two additional methods of getting a bill to the floor through a motion to proceed. The first new method would let the speaker move to proceed on a bill with only 51 votes after four hours of debate. Current practice allows the majority leader to proceed on a bill with 60 votes after three days of debate. As a condition for using this method, the speaker would not be able to “fill the amendment tree” — preventing the minority from filing any amendments. However, the new method would allow the speaker to limit the number of amendments that could be offered to only four: two by the majority leader and majority manager, and two by the minority leader and minority manager. 

This would mean that 96 other senators would not be able to offer amendments, effectively cutting out the ability of any conservatives who are not in leadership to propose amendments. So the minority would be giving up a 60-vote threshold and debate time in exchange for a guarantee that no more than four members of the Senate (only two of whom are in the minority) could offer no more than one amendment each. In addition to gutting the minority’s ability to filibuster motions to proceed, this proposal also constitutes a deplorable departure from Senate rules and traditions of applying its rules equally to all of the members.#more#

The second additional method that McCain-Levin would give to the speaker (and only the speaker) would allow him to proceed with a bill with 60 votes after only two hours of debate. This could only be used if the cloture motion is signed by the majority and minority leaders and at least five additional members from each caucus. But this method would not prevent the speaker from filling the tree to prevent amendments by the minority. It also would apparently drop the number of members needed to sign a cloture motion from the current 16 senators to twelve. So once again, the minority would be acceding to diminishing its filibuster power and its role in the legislative process without getting anything in return. Moreover, the ability of senators to overcome the objections of a majority within their own caucus and provide the necessary votes for the opposing party would be enhanced by the reduction in the number of senators needed for a cloture motion.

The McCain-Levin proposal also would change the rules for letting bills go to conference to work out differences between House and Senate versions. The current rules are an important protection because senators can threaten to block a conference proposal (with an objection to unanimous consent) unless conferees provide assurances that an amendment adopted by the Senate will not be stripped out in the dark of night or that conferees will not insert provisions that aren’t in either version of the bill passed by the House and Senate. The change would collapse the various motions than can be made to send a bill to conference into one super-motion that would be voted on after only two hours of debate over the objection of a single senator, compared to the five days in current practice. It substantially reduces the power that individual senators, especially conservatives in the current Senate, have to ensure their views are protected in the conference.

Finally, McCain and Levin would make an additional 531 nominations of executive-branch officials eligible for a new expedited process that would not involve going through traditional committee review. This would make it much harder to stop bad nominations. The senators fail, however, to identify which executive-branch positions would be subject to this “get-confirmed-without-review” process. And only committee chairs and ranking members could strike any particular nominations from the list of 531 before this new Standing Order is adopted by the Senate, once again removing most conservatives from any say in the process.

Cloture motions on the remaining 448 nominations that would go through the traditional committee review process would be subject to a vote after only two hours of debate (instead of the current three days) with no post-cloture debate. This rule change would not apply to cabinet or cabinet-level officers and Article III judges. Not only is two hours barely enough time to talk about a nominee’s background, much less potential problems and issues, but this would effectively reduce the ability of senators to use the nominations process as leverage in negotiations with the executive branch.

Word has also leaked out that because there will not be enough senators in Washington on Thursday when the 113th session starts, Senator Reid is going to technically keep the Senate in session, stretching out the first legislative day as long as he needs to get the votes for his change. So the “first day” of the Senate’s new session could last several weeks.

The bottom line here is that the minority members of the Senate should put up a fierce fight to stop the changes that Reid wants to implement, even if that shuts down the Senate. That means using objections to unanimous consent, quorum calls, and a host of other parliamentary procedural tricks that exist in the Senate Rules. The proposed “compromise” would give Reid what he basically wants but with the minority acceding to the change without firing a single shot to defend their rights under the Senate Rules. It would be a parliamentary deal that only Neville Chamberlain would be proud to make.

Hans A. von Spakovsky — Heritage Foundation – As a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Center for Legal and Judicial Studies, Hans von Spakovsky concentrates on voting, ...

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