McConnell downplays Republicans’ use of the nuclear option

Radical. That is how Mitch McConnell, R-Ky., describes the 2013 decision by his Democratic colleagues in the Senate to scrap the filibuster for all presidential nominations other than those for the Supreme Court. He claims that, at the time, Republicans opposed the move “on principle” and asserts that “my Republican colleagues and I have not and will not vandalize this core tradition for short-term gain.”

Yet McConnell concedes that Republicans have adhered to the 2013 precedent and its vandalizing of a core Senate tradition since they regained the majority after the 2014 elections. He also acknowledges that Republicans used the nuclear option themselves to create two additional precedents in 2017 and 2019 that also violate Rule XXII. In 2017, Republicans used the nuclear option to expand the 2013 precedent to cover Supreme Court nominations – “we took the Reid precedent to its logical conclusion, covering all nominations up to and including the Supreme Court.” In 2019, Republicans used the nuclear option to limit debate time on presidential nominations further. According to McConnell,

“So this is the legacy of the procedural avalanche Democrats set off: Justice Neil Gorsuch, Justice Brett Kavanaugh and 43 new lifetime circuit judges — the most ever at this point in a presidency. The consequences of taking Senator Reid’s advice will haunt liberals for decades.”

What is McConnell’s justification of Republicans adhering to the 2013 precedent instead of the Senate’s rules, not to mention using the nuclear option themselves in 2017 and 2019, even though they previously opposed it on principle? In short, the Democrats did it first. McConnell uses phrases like “took…to its logical conclusion” and “procedural avalanche” to suggest that Democrats are guilty of vandalizing the Senate and Republicans are innocent. In doing so, McConnell obscures the extent to which Republicans also vandalize the Senate’s rules when it is convenient for them to do so.

What Happened in 2013?
Technically, Democrats did not eliminate the filibuster in 2013. Instead, they effectively lowered the threshold required to invoke cloture (i.e., end debate) on the nominees in question from three-fifths of senators duly chosen and sworn (usually 60) to a simple majority (usually 51) in violation of Rule XXII. Democrats used the nuclear option to get around the rule.

The term “nuclear option,” refers to instances in which a majority of senators use their power under the Constitution to ignore, circumvent, or change the Senate’s Standing Rules with a simple-majority vote in direct violation of those rules.

Senate Rule XXII stipulates that a motion to invoke cloture on any “measure, motion, or other matter pending before the Senate” requires an affirmative vote of “three-fifths of the senators duly chosen and sworn- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.”

In 2013, Democrats used the nuclear option to violate Rule XXII by exempting presidential nominations from the requirements of Rule XXII without following the procedures stipulated by the rule. In other words, they created a new precedent that was inconsistent with Rule XXII. Democrats did not change Rule XXII. The rule still requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to end debate on presidential nominations. And the Senate continues to publish Rule XXII as it existed before the 2013 nuclear episode. Rather than use the nuclear option to change Rule XXII, Democrats ignored it.

Republicans Also “Vandalize” Senate Rules
McConnell contends that the 2013 precedent made it ok for Republicans to adhere to it instead of Rule XXII. He also argues that the Democrats’ use of the nuclear option made it ok for Republicans to use it themselves in 2017 and 2019. McConnell argues that Republicans today are merely complying with a rules regime established by Democrats over their objections.

However, the 2013 precedent that Democrats established specifically violated Rule XXII. This point has significant implications. Rather than acquiescing to a new rules regime, Republicans (and Democrats) violate Rule XXII every time they choose to adhere to the 2013 precedent instead of the process stipulated in the rule. For that reason, senators re-affirm the 2013 nuclear option (and thus violate Rule XXII anew) whenever the Senate invokes cloture on a presidential nomination by a simple majority vote.

Had Democrats instead used the nuclear option in 2013 to amend Rule XXII to permit simple-majority cloture, Republicans today would be complying with the amended rule every time they invoked cloture on a nomination with less than 60 votes but more than a simple majority. But because of the specific way Democrats used the nuclear option, there is no one first act of breaking the rules that legitimize all subsequent departures by Republicans from the status quo ante.