What will be the fallout from the nuclear option?
No, I’m not referring to the high-stakes diplomatic effort to forestall nuclear weapons capability in Iran.
Instead, the so-called nuclear option refers to a change in the rules by which the U.S. Senate operates.
By a 52-48 vote, the Senate ended the requirement it takes 60 votes to stop a fi libuster or shut off debate. In recent years, the 60-vote requirement has eff ectively governed Senate business, even though a majority vote assures passage or approval of most matters - if they are allowed to come to a vote.
Now, fi libusters intended to block a vote on presidential nominees to executive and judicial positions can be broken by a simple majority. It is important to understand the new rule applies only to nominations for executive branch positions and judicial appointments - excluding the Supreme Court. It does not apply to consideration of legislative matters. The nuclear option label shouldn’t really apply to the move to lower the threshold from 60 to 51. It is a significant change but not necessarily earth-shaking,particularly because of its limited scope. In 1975, the Senate had reduced the number of votes required for cloture (shutting off debate) from 67 votes to 60.
Some critics suggest, however, the recent rule change represents a breakdown of constitutional norms. But the Constitution says nothing about House and Senate rules, leaving those to the legislative bodies. It does require two-thirds Senate approval in certain limited categories (treaties, impeachment conviction, constitutional amendments).
The Constitution does give presidents authority to nominate top governmental oftcials and federal judges and certainly doesn’t say anything about allowing a Senate minority to block them. What really drove the Senate Democratic leaders to change the rule was the unvarying pattern of Republican refusal to allow votes on nominees to key positions, including the high-profile D.C. Circuit Court of Appeals.
That steadily increasing practice of blocking up-ordown votes might well be considered a violation of democratic (small d) norms. There was clearly a strong case for making the rule change. Democrats had used the filibuster threat to turn back some nominees when they were in theSenate minority, but in recent times, Republicans have made what was once a rarity into almost standard practice.
Both Arkansas senators voted against the rule change. Republican John Boozman sided with all his GOP colleagues, but Democrat Mark Pryor was one of only three in his party to oppose the change. Pryor has long been active in bipartisan eff orts to avoid a showdown over the cloture rule. He said the nuclear option could permanently damage the Senate.
“This institution was designed to protect - not stamp out - the voices of the minority,” he said.
Most Democrats pushing for the change were newer members, frustrated by what they see as arcane hurdles to getting things done. Many Republicans who used the fi libuster tactic to block Obama nominees are Senate newcomers.
Pryor has been in the Senate since 2003, and his father served there18 years so it is not surprising he respects Senate traditions. One of the Democrats joining him in opposing change was Carl Levin of Michigan, a 35-year Senate veteran, who said the majority was sacrificing vital principle for momentary convenience.
Indeed, though the case for change appeared strong, the case for continuity is also strong. Having spent many years as a Senate staff member, I greatly respect Senate history and tradition. One of those I worked for was Robert Byrd when he was majority leader. No one had greater reverence for the Senate’s history and traditional practices than Byrd.
Although he believed itimportant for the Senate to be productive, in one of his last appearances before his death in 2010, Byrd adamantly opposed allowing rules to be changed by less than a two-thirds majority, which is what happened last month.
“The Senate has been the last fortress of minority rights and freedom of speech in this Republic for more than two centuries,” Byrd told the Senate Rules Committee. “I pray that senators will pause and reflect before ignoring that history and tradition …”
Republicans say Democrats will regret their action and the tables will be turned whenever the GOP next finds itself a majority.
In the meantime, don’t besurprised if Republicans still find ways to delay and block action.
This comes at a low point in congressional history, at least in terms of public approval and productivity.
Public approval of Congress is in single digits, an all-time low. The level of productivity is lower than at any time in 66 years.
The problems go well beyond anything that can be resolved by a rule change.
Internationally, we need nuclear nonproliferation.
In the Senate, we need nonproliferation of partisan politics.
HOYT PURVIS IS A JOURNALISM AND INTERNATIONAL RELATIONS PROFESSOR AT THE UNIVERSITY OF ARKANSAS.
Opinion, Pages 11 on 12/08/2013