In 2013, former Senate Democratic Leader Harry Reid, D-Nev., invoked the so-called “nuclear option.” That is, with a simple majority vote, he and his Democratic majority changed Senate rules to make it easier to confirm certain executive and lower court nominees. No longer would supermajorities be required to confirm judges, as they had been under President George W. Bush. Now, a simple majority would do.
At the time, this was a very big deal. Some level-headed Democrats even warned that this decision would come back to bite. And it did.
In 2017, Senate Majority Leader Mitch McConnell, R-Ky., used that same “nuclear option” — a simple-majority vote to change Senate rules — to expand Reid’s rules to Supreme Court nominations. Although again controversial, this was probably an inevitable escalation, as Democrats had openly promised to do the same thing when they still expected to win the Senate and the presidency in 2016.
Last week, McConnell and his Republican majority tweaked the rules again, again using the nuclear option. Their change this time is more subtle, shortening the guaranteed period of post-cloture debate for each federal district court nominee and each sub-Cabinet executive branch nominee from 30 hours to just 2 hours.
Once again, this is a troubling change, but probably not for the reasons you might expect.
We are not concerned about this change because it is unprecedented — as noted above, it is now commonplace.
Nor are we concerned because this will somehow damage the Senate’s debate procedures for nominees. In fact, senators can discuss district court nominees any time they like, not only in the post-cloture debate time. What’s more, they rarely use the post-cloture time for lower court nominations unless they’re just trying to stall for time, which is what Democrats have been doing a lot of since Trump’s election.
And that’s the reason McConnell took this step now. Though in the minority, Democrats have ridiculously dragged out completely uncontroversial nominations in an effort to run out the clock and prevent Trump from governing, and even having a governing team in place. In addition to inoffensive lower-court nominees, they have taken up maximum time dragging out nominations for even the most obscure executive offices. For no good reason, cloture votes have been required to confirm Trump’s ambassador to Luxembourg, his commissioner of the Bureau of Labor Statistics, his comptroller of the currency, his undersecretary of Transportation for policy, and the general counsel for the Department of Agriculture — to name just a handful of dozens of similarly low-profile positions identified by McConnell’s office. Never before had the nominees for any of these offices required a cloture vote, until this administration.
To solve this problem, McConnell helped build upon another dangerous precedent in the Senate last week. Although the Senate’s written rules prescribe a two-thirds majority for rule changes, the Senate is also governed by unwritten precedents. The decision on such precedents is made based on a simple majority vote, and now the precedent that Reid set when he changed the rules with such a simple majority is ever-easier to abuse.
The Senate’s slow and deliberative processes, and senators’ lengthy terms in office, have long kept the nation’s laws stable and constant in the face of populist fads. This is why, as resourceful as Democratic obstruction has been in the Trump era, it’s hard to think of anything the nation needs less than one more escalation to destroy the traditional curbs on the power of the Senate majority.
At this point, both parties have done their share of weaponizing Senate procedure. And it’s all the more alarming because neither party seems capable of any sort of collaboration or compromise with the other.
Indeed, Democrats, who fired the first shots, will surely carry take what McConnell has done and carry things further whenever they next get control of the Senate and the presidency. If they really want to go for the jugular, perhaps destroying the country in the process, they will do as they have lately hinted: abolish the Senate filibuster for ordinary legislation, then pass a new law that lets them pack the Supreme Court.
Or it could be the Republicans who pack the court, or pack it further. Or perhaps they’d just abolish the filibuster and privatize Social Security, or abolish any number of Great Society social programs, in such a way that there will be no funds available to reconstitute it later. On either side, the sky is the limit once the escalation reaches a certain point.
Maybe this all sounds improbable, but it isn’t. The only thing stopping this now is the same sense of propriety and tradition that both Reid and McConnell have waved aside in the last six years.
To stop this escalation, we recommend something akin to John Rawls’ famous thought experiment. Let senators establish a new and more sound, durable framework for Senate rules, to take effect at a time when no one knows who will be in power.
Senators from both parties should gather now and derive a new consensus-based set of written rules which, excluding all unwritten precedents, will apply to all Senate action beginning after some future election (perhaps in January 2021, 2023, or 2025), when no one knows for sure who will control the Senate or the White House. Perhaps the new rules will look like they do now, or like they did two weeks ago, or even perhaps like they did in 2012.
Because neither party has any clue who will be in power, both will be solicitous about preserving minority rights, but also diligent in ensuring that a Senate majority is not prevented from governing.
We understand that this would represent a major change to how the Senate works. But that ship already sailed. As of 2013, the Senate is broken. It is now up to leaders from both parties to come together and prevent an escalation that could potentially destroy the perceived legitimacy of the federal government and its system of laws.
