Of Filibusters, the Nuclear Option, and other Hot Air

Harry Reid has warned Senate Republicans that he might consider resorting to the “nuclear option” if Republicans don’t stop filibustering Obama’s executive appointees (many of which have already been deemed unconstitutional).

The “nuclear option” refers to the presiding officer over the Senate (typically the Vice President) disregarding a rule or precedent. All it takes for the presiding officer’s overruling to become a new precedent is a simple majority vote.

Ending a filibuster according to regular Senate rules requires 60 or 67 votes out of 100 (depending on whether you are talking about legislation or a rules change, respectively). But a filibuster could be ended with a simple majority if the nuclear option is invoked. It would work out like this:

  1. The presiding officer would ask whether the filibuster is legal.
  2. The Senate parliamentarian would reply that it is.
  3. The presiding officer would over-rule the finding that the filibuster is legal.
  4. A simple majority would uphold the presiding officer’s decision, making it a new precedent.

So, in a few steps, a simple majority can end a filibuster. Which totally defeats the purpose of a filibuster, by the way. I find it humorous that this option is sometimes referred to as “the constitutional option,” since it clearly militates against the obvious intent of the Constitution. A filibuster makes it so a minority in the Senate can slow the progress of the majority. It is not first and foremost to defeat legislation, as it is to gum up the works. The Constitutional framers did not want to make it too easy for majorities to get their way. A slow government is not necessarily a broken government.

You might be curious why the nuclear option has not been in constant use. I know I was. Republicans and Democrats would like you to think that the main reason is the same reason the other nuclear option has not been resorted to since 1945: mutually assured destruction. Democrats know that if they unholster the nuclear option on Republican filibusters, then Republicans might do the same when they have a majority. Or perhaps Republicans will find some other way to retaliate, even while they are in the minority. One way or the other, the assumption is that the balance of power will keep flip-flopping, so everyone needs to play by the rules. That’s certainly one way of looking at it—as if Republicans and Democrats are locked in some kind of intense Cold War type showdown involving fundamental political differences. But I prefer to think it is more of an “I scratch your back, then you scratch mine” kind of situation.

In a breath-taking display of oratorial tautology, Harry Reid talked about this mutual agreement Republicans and Democrats have to play nice, go along, and get along:

A deal is a deal, a contract is a contract, an arrangement is an arrangement, a bargain is a bargain, as long as each party to such an agreement holds up his end of the bargain. ((Washington Times, “Harry Reid prepares Senate to go ‘nuclear,’ end nomination filibusters,” July 11, 2013.))

Republicans enjoyed the same advantage in 2005 that the Democrats enjoy now. And they threatened the nuclear option then. Democrats cried foul then. Republicans cry foul now. It was actually a Republican (good old Tricky Dick himself) who came up with the nuclear option in 1957. Each party has its few years at the top of the two-party see-saw, all thanks to the extraordinarily short attention span and short historical memory of the average American voter.

I think it should be patently obvious that the entire political system in the United States has become a sham. There aren’t really two parties. There are barely two political flavors. There are two groups of stage actors whose actual opposition is about as authentic as the in-ring drama between Ric Flair and Dusty Rhodes.

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