Using the Nuclear Option to Limit Post-Cloture Obstructionism, Not Deliberation

Talking Points Memo has the most cogent explanation of what happened tonight regarding the s0-called nuclear option (edit: see also Sarah Binder’s post at TMC).  I’m too tired at the moment to add anything relevant, so here is what you need to know whilst standing at the office water cooler tomorrow:

…this wasn’t just about checkmating McConnell. As he said in a statement late Thursday, “The Senate must have the ability to move forward on legislation that has broad bipartisan support. A small minority of senators cannot be allowed to bring bipartisan legislation, like a bill to end China’s job-killing, underhanded currency manipulation, to a grinding halt when 14 million Americans are out of work.”

To wit, after legislation has overcome a filibuster, only a very narrow set of germane amendments can come up for votes — unless the rules are suspended. Since Obama’s jobs bill is not germane to Chinese currency legislation, it was out of order, and suspending the rules was McConnell’s only way to force the vote. This thin reed of minority power has been ripped from its root, because Reid’s play Thursday night.

Still, what Reid did operates on the same principle as the “nuclear option.” It is tactically the same maneuver Republicans threatened to pull in 2005 when they pushed to end judicial filibusters. But the issue at stake is much, much narrower — it ends a ploy that hasn’t been pulled successfully in decades, except to delay proceedings on the Senate floor and score political points.

Got that?  This isn’t the so-called “nuclear option” of 2005 (at least not in my opinion). Not even close.  The minority still wields the power to filibuster.  Now hopefully we can cut through the inevitable freak-out because there is an important question about just how consequential Reid’s new Senate precedent is.  Speaking of our “things institutioanlists know that you don’t” series (see two posts here and here), one item historical institutioanlists know is the fact that changes in congressional rules and procedures can have unintended, “emergent” qualities (i.e. irrespective of their rational design or intentions).  It is conceivable–as even casual congressional observers note–that this leads to the erosion of the filibuster (perhaps if Republicans take control in 2012).  It also could be a step toward further limitations on amendments in the Senate, especially at the post-cloture stage (perhaps even germane ones, which would be a significant development).  Time will tell.

edit: the title of this post could have just as easily been “you say nuclear option, I say tomato.”

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