In Axios, Alayna Treene reports on top Democrats’ continued struggles to get Joe Manchin and Kyrsten Sinema to sign on to some nuclear option for the legislative filibuster. Her story features considerable anonymous frustration with Manchin’s and Sinema’s refusals to flip-flop on the filibuster.
But there’s a reason why these negotiations have struggled: Manchin and Sinema like to find compromises, and it’s hard to locate middle ground on the nuclear option. At the core of this debate is not just the filibuster but the nature of the Senate rules. The premise of the nuclear option is that it’s a state of exception: Senate rules stipulate that a two-thirds vote of the Senate is required to make any rules changes (normally, three-fifths of the Senate is required to impose cloture on a motion, but the rules stipulate that imposing cloture on a rules-change motion requires a two-thirds supermajority). In detonating the nuclear option, a bare majority of senators unilaterally creates an exception to those rules. The nuclear option, then, is more like an on–off switch than a dial — either the rules matter or they don’t.
The obvious fact that the nuclear option has no limiting principle is one of the reasons why Manchin has been so resistant to the idea of using it to create a filibuster “carve-out.” As he recognizes, a nuclear-option carve-out for one issue in one Congress sets the precedent for more carve-outs in later Congresses. But many other nuclear warheads raise a similar problem. If one partisan majority can use the nuclear option to set the cloture threshold to 55 votes, what’s to stop the next partisan majority from setting it to 51 votes?
Reforms to institute a “talking filibuster” have their own complexities. Bringing back the talking filibuster of old doesn’t require the nuclear option at all. The current convention of the “silent filibuster” is a prerogative of the majority leader, who can bring back the talking filibuster by simply waiving dual tracking (something that has been done in the past). Nuclear-option proposals branded as a talking filibuster — such as requiring filibustering senators to maintain 41 votes on the floor at all times — would not be a return to the traditional talking filibuster and would still be nuclear, with all the radioactivity and likelihood of future detonations entailed by it.
In a statement to Axios, a Sinema spokesperson reveals the crux of the problem for a “compromise” nuclear option: “Her position on eliminating the 60-vote threshold — and the long-term negative consequences of doing so — has not changed. . . . If there are proposals to make the Senate work better for everyday Americans without risking repeated radical reversals in federal policy, she remains eager to discuss such ideas.”
Going nuclear inherently raises the risks of future radical reversals in federal policy, as successive majorities will have incentives to remove conventional restrictions on its power. Because the appointments process is relatively distinct from the legislative one, theoretically the nuclear detonations of the last decade could be contained to appointments. But, once majorities start tinkering with legislative rules changes via the nuclear option, they begin the process of the nuclear ratchet.
Thus there seem three options: Work within the rules as they currently exist. Try to find some compromise rules changes through regular order (which will require working with Republicans). Go nuclear, and turn the middle ground into no man’s land.
As long as Manchin and Sinema want to avoid no man’s land, they will have a hard time agreeing to push that shiny red button.