Using the "Nuclear Option" for Filibuster Reform Endangers Cooperation

Jan 7, 2013Joe Swanson

Filibuster reform is increasingly important, but just as important is the way it's achieved.

In recent years, Congress has achieved several unprecedented failures. Since 2007, an estimated 391 filibusters forced cloture votes. Compare that to only 49 cloture votes between 1919 and 1970. In the 112th congress alone, members of Congress have accomplished the passage of a mere 219 bills, many of which were housekeeping measures such as naming post office buildings or extending existing laws. This output has set the record as the least productive Congress in record keeping history, including the 80th congress in 1947, infamously known as the “Do Nothing Congress.” In addition, they have won the reproach of the people with a 10 percent approval rating earlier in the year, the lowest approval rating Gallup has reported in its history. These statistics not only document the abuse of the filibuster and its consequences, but also demonstrate that the reasons behind our legislative gridlock reach beyond the filibuster or even Senate rules.

Our lawmakers have lost the ability to compromise. While the filibuster was once a tool designed to increase the space for debate, it now has the polar opposite effect. However, changing the rules may only exacerbate the inability to compromise. If done through fundamentally uncompromising partisan political tools, the very goal of reforming the filibuster to increase debate and the functionality of the Senate will both be at risk.

Filibuster reformers have so far offered three solutions. First, Senate Majority Leader Harry Reid proposed eliminating the filibuster on the steps necessary to go to House-Senate conference and has given his support to Senator Tom Udall’s proposal to eliminate the filibuster on the motion to proceed. Senator Jeff Merkley has also authored the “talking filibuster” proposal, which requires senators seeking to filibuster to debate the issue they are blocking.

If our goal is to center the Senate’s focus on debate rather than mindless obstruction, the first two proposals are common sense and moderate changes that get us there. They neither seek the destruction of the filibuster nor obstructionism. Sarah Binder, a political scientist at George Washington University, notes that eliminating the filibuster on the motion to proceed would make it easier for the majority to set the legislative agenda and bring bills to the floor for debate. But it wouldn’t stop the minority from filibustering a bill’s final passage. Rather than eliminate obstructionism, “it might shift it and put focus elsewhere.” This change in focus would be a shift toward debate, thus cultivating the Senate’s true purpose.

Though the “talking filibuster” proposal’s attempts to return the filibuster to the days of Mr. Smith Goes to Washington is intuitively appealing, it comes with several pitfalls that would need to be resolved in the final proposal. For example, one of the fundamental problems in the proposal is that it does not take into account the possibility of the existence of a minority greater than two or three senators. Today, our senate has become subject to such partisanship that most filibustering minorities carry around 40 votes, if not more. Therefore, under the current provisions of the “talking filibuster,” filibusters would, as Richard A. Arenberg puts it, “become merely a scheduling exercise.”

Though reforms are absolutely necessary given the unsupportable gridlock currently choking our legislative process, and the reforms suggested by Senators Reid and Udall are moderate and viable, the manner in which these reforms will be enacted should be the focus of any reform efforts.

Unfortunately, there is talk from the leadership in the reform movement of the use of the constitutional/nuclear option. The use of this option would eliminate the need to speak to, or compromise with, any senators in opposition to the reform, because the nuclear option would only need 51 votes to change the rules (as opposed to the two-thirds majority vote that would be needed to change Senate rules on any other day than the day the Senate opens in the new year). According to Udall, reformers already have the 51 votes needed to impose the nuclear option. Not only will the neglect of nearly half of the Senate further aggravate partisan tension, many in opposition fear where the nuclear option may lead the Senate.

If the nuclear option is used at the beginning of the 113th congress, it will stand as a dangerous new precedent. Many claim the move could fundamentally change the Senate, an institution designed to protect the rights of the minority, into a body annually altered to create the roads necessary for majorities to pass legislation while minimizing any need to compromise with minority parties, thus creating a tyranny of the majority.

If the nuclear option is not used, then reformers must find a 67-vote majority to change Senate rules. However, many would ask how they could possibly find the 67 votes if a majority often cannot even scrape together 60 votes to file cloture. The answer is simple: senators would learn to compromise as they have in the past.

In 2005, former President George W. Bush’s presidential nominations were subject to heavy filibustering and, just as today, obstructionism became so damaging it came to the point that Republicans were threatening to reform the filibuster via the nuclear option. To avoid setting this dangerous precedent, senators created the “Gang of 14,” seven Democrats and seven Republicans who came together to negotiate. They produced a signed agreement whereby the seven Democrats would no longer filibuster judicial nominees except in “extraordinary circumstances.” In return, the seven Republicans would not vote to enact the “nuclear option.”

It is worth noting that in 2005, many of the statements surrounding the argument seemed to have flip-flopped as the minority in 2005 now stands as the majority in 2012 and vice versa. Therefore, reformers threatening to utilize the nuclear option should understand that they will be playing by the same precedent when they become the safeguards of minority rights.

The obstruction in 2005 may be the closest example we can cite of a debilitating gridlock that nearly resulted in the utilization of the nuclear option to reform the filibuster. However, the current state of uncompromising politics that has plagued our legislative branch is unprecedented. As David Waldman points out at Daily Kos, the entire argument surrounding filibuster reform in 2005 addresses an entirely different aspect. Moreover, in January 2011 an attempt to curb abuse of the filibuster and avoid the nuclear option through a “Gentleman’s Agreement” between Senate majority and minority leaders Reid and McConnell quickly fell apart. This all demonstrates that the chances of any compromise, and especially one that will amount to a 67-majority vote, are very slim. Nonetheless, the Senate must take that chance.

We must begin to reward senators belonging to the minority who maintain the ability to compromise, even if they are few. There are currently no proposals that suggest the complete elimination of the filibuster, so even if reform is enacted, Democrats are still going to have to work with Republicans, even if only to achieve a successful cloture vote. Therefore, reformers cannot burn bridges as they would with the nuclear option. Breaking a filibuster can be a matter of persuading only one or two senators. With Democrats on the brink of a 55-vote control of the 113th Senate, only five Republican votes are necessary. Perhaps refusing to use the nuclear option would lead to the political capital necessary to persuade these Republicans and set a precedent of compromise and cooperation.

Thankfully, talks have already begun between Senate reformers and opposition leaders to avoid the nuclear option. Senators from both sides, led by McCain and Levin, have recently offered a counter proposal that would last two years and give the majority leader two new methods to block a filibuster on starting debates, going to conference with the House, and some presidential nominations.

Though Senator Merkley is not satisfied with the counter proposal, claiming, “The heart of the current paralysis, the silent, secret filibuster, is not addressed by the Levin-McCain proposal,” the offer demonstrates the signs of bipartisan support and openness to reform needed to render the nuclear option unnecessary. In exchange for not going nuclear, both sides should agree to work together to make formal, reasonable, and viable rule changes that will curb filibuster abuse and reestablish our Senate’s paramount ability to compromise.

Joe Swanson is a junior at Wake Forest University where he is co-president of the Wake Forest Roosevelt Institute | Campus Network and a member of the chapter's Equal Justice Policy Center.

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