Nuclear Showdown

Earlier this year a good faith, bipartisan deal was made in the Senate to put minor limits on the use of the filibuster on legislation. But this effort apparently did not tamp down the intense partisanship. In response, Senate Majority Leader Harry Reid is laying the rhetorical groundwork for much more aggressive reform later this summer.

The nuclear option
This time around he is considering “going nuclear” by doing away with the 60-vote threshold on all judicial and executive branch nominations in response to Republican threats to block three nominations—Richard Cordray to head the Consumer Financial Protection Bureau, Gina McCarthy to head the EPA, and Thomas Perez to head Labor.

“Going nuclear” on judicial and executive branch nominations means avoiding the formal process of securing 60 votes to cut off debate. Instead, a new precedent to exempt nominations from filibusters would be established by simple majority vote. The move is deemed “nuclear” because the minority would presumably “blow up the Senate” by obstructing everything else in protest.

The strategy is similar to what Senate Majority Leader Bill Frist proposed in 2005, when Senate Democrats were blocking President Bush’s judicial nominations. Democrats promised to shut the place down if Republicans “changed the rules by breaking the rules.” Frist backed off and a nuclear meltdown was averted.

Is it really a game of chicken?
Like the 2005 episode, the current nuclear showdown is a gamble for both parties. Reid’s challenge is to make Senate Republicans believe that he will exercise the nuclear option if they block any of the three nominations in question. Senate Republicans must convince Reid that they will respond by blocking everything else—including immigration reform. If Reid opts to go nuclear, then he gets his nominees … but at what cost? If Senate Republicans obstruct, they get the satisfaction of blocking the majority’s agenda … but at what cost? If going nuclear results in total legislative gridlock, which party will shoulder the blame?

In a game of political chicken, whose threat is more credible?

In order for Reid to convince Republican senators to back away from blocking nominations, his threat to go nuclear must be viewed as credible. Earlier this year, he opted to negotiate filibuster reform with Republicans, in part because several senior Democrats did not support going nuclear—a factor that Republicans will certainly consider this time around. Currently there are 52 Democrats in the Senate and 2 Independents (Bernie Sanders of Vermont and Angus King of Maine) who caucus with the party. Recent reports suggest that, among Democratic senators, Carl Levin (MI) and Jack Reed (RI) do not support going nuclear and Senators Mark Pryor (AR) and Max Baucus (MT) have not made their positions known. This means that Reid may need all of the remaining 50 (including the two independents) to pull off this parliamentary gambit. Currently there are 99 senators with the death of Sen. Lautenberg of New Jersey. Should Governor Christie nominate a successor to hold the seat—he would nominate a Republican—then we could have a 50-50 vote if the bulk of the Democratic caucus plus independents held firm. Vice President Biden could cast the 51st vote, although that might put the White House in an awkward position.

If Reid has the votes, why not move forward?
Given the Republicans’ aggressive use of the filibuster, their threat to obstruct is credible. Senior Democrats fear that their legislative agenda—namely, immigration reform—will go down in flames if Reid goes nuclear now. It is likely that, if Reid decides to exercise the nuclear option, it won’t happen at least until July, after the Senate acts on immigration reform.

As noted in last month’s newsletter, seven Democratic Senators and seven Republican Senators came together in 2005 to develop a plan to head off Majority Leader Bill Frist’s threat to use the “nuclear option” to prevent Democratic filibusters of some of President Bush’s federal court appointees. The deal preserved the filibuster option while at the same time smoothing the approval process for some of the more contentious nominees. Five Senators from the 2005 “Gang of 14” are still in office, including Republicans Susan Collins of Maine, Lindsey Graham of South Carolina, and John McCain of Arizona. Skeptics say more gang activity is not the solution. But given Reid’s reluctance to commit to a plan of action, he just may be hoping that a gang can help him avert a nuclear meltdown.