The Senate Rule Change Was “A Return To Order”

Harry Reid published an op-ed in today’s Washington Post defending last week’s change in Senate precedent.  He begins his essay by arguing–like I did in the immediate aftermath of the vote– that what occurred last week was vastly less significant than what we typically associate with the s0-called “nuclear option” (i.e. the threatened nuclear option in 2005).  Now I suppose that, at a procedural level, what occurred in the Senate was a “nuclear option” (if we use the phrase nuclear option broadly to describe any procedural change that limits a minority’s ability to obstruct).  However, I would argue that Reid’s move is unbefitting a term with the word “nuclear” in it. As a conceptual matter congressional observers associate the term “nuclear option” with limiting a minority’s right to debate a bill on the Senate floor, which many observers have noted this is not.  In his essay, Reid also argues that, contrary to the hysteria, his parliamentary move represents a return to Senate precedent (not a fundamental change).  Gregory Koger, posting over at TMC, presents a chart showing the incidence of votes to suspend Senate Rule XX post-cloture (the procedural maneuver Reid was reacting to).  Note that in 2010 there were 18 votes to suspend Senate Rule XX post-cloture.  There were only two (denoted by the red lines) from 1971 to 2009.  So what occurred in the Senate was really the elimination of post-cloture obstructionism (which Koger shows quite clearly was rare prior to 2010 with respect to votes to suspend Rule 22).  Once cloture has been enacted, which it was in this case, and a bill has a the tacit support of a super-majority in the Senate, dilatory amendments are out of order according to Rule XX.  What’s important here is that nothing has changed regarding pre-cloture obstruction.  The minority still retains the power of unlimited debate.  This is why Reid and numerous other observers (i.e. Sarah Binder, Steve Smith and Gregory Koger) uave argued that this is not what we typically associate with the “nuclear option” but rather an attempt to regain normal order.  Of course, in another sense Reid is downplaying the long-term significance of his parliamentary move.  In the coming years new majorities, particularly a new Republican majority, will have an easier time eliminating or severely limiting the filibuster.  One thing many students of Congress know is that seemingly minor changes in rules can have unforeseen and consequential long-term effects.

Here are some experts from Reid’s op-ed from the Washington Post:

The Senate rule change we made last week has been inaccurately described, including by Marc A. Thiessen on this page, as a resort to the “nuclear option.” But rather than a nuclear option that would have forever altered the character of the Senate by limiting the minority’s ability to challenge legislation, the change we made Thursday was a return to order.

The Republicans used a new stall tactic last week, one that is used infrequently in the history of the Senate. It was an attempt to make cloture meaningless — to say that the road to passage must include a vote-a-rama of unrelated, purely political votes.

This is the practice we voted to change. The precedent we set merely returns the Senate to the regular order and only affects the ability of the minority to obstruct and delay after more than 60 senators have voted to end discussion.

Now, 60 votes to end debate will mean debate actually ends, as the rules of the Senate intended. We restored the balance between individual rights and comity in the rules of the Senate. But this change goes only so far. For the good of our economy and our country, I hope Republicans will work with us to restore that balance in our larger political debate in the interest of finding practical, bipartisan solutions to put Americans back to work.

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