Last week, Majority Leader Harry Reid and Democrats changed the Senate, allowing a simple majority to end filibusters on most judicial nominations and executive appointees. To do so, they used what had become known as the “nuclear option,” interpreting the rules to mean that while 60 voters were needed to end a filibuster, only 51 votes were needed to change that rule.
The maneuver became known as the nuclear option in the early 2000s, because many believed changing the rules without the traditionally required super-majority would fundamentally change the Senate. While the 60 vote filibuster stands on legislation and Supreme Court nominees that could change just as rapidly should a bill or appointee be judged the unacceptable victim of obstructionism. Quickly, the minority party would have little more power than they do in the House.
Until recently, I was against the change. I remembered when a super-majority requirement might have been the only thing standing between the LGBT community and a constitutional amendment banning same-sex marriage. I remembered the effort to privatize social security, which might have made it through a majority controlled Senate. I saw the filibuster as a reasonable way to slow down extreme ideas, even if it meant slowing down some good ones as well.
What changed? The Senate. Fundamentally, and long before Harry Reid pressed the nuclear button.
Filibusters used to be reserved for highly controversial issues or people. Minority Leader Mitch McConnell now requires them for nearly everything and everyone. (When they were in the minority, Democrats were part of ramping up filibuster use as well). When President Obama nominated Chuck Hagel, a former Republican senator, as secretary of defense, McConnell in essence filibustered his former colleague. Filibusters are also now used to take a second bite at the legislative apple. Don’t like a new program? Filibuster the nominees so it can’t get going, as Republicans did with the Consumer Financial Protection Bureau. In fact the judicial filibusters that prompted Reid to act weren’t even about the nominees being unqualified, but were done because Republicans don’t feel those seats on the D.C. Circuit Court of Appeals are needed, despite the fact they were more than happy to fill them in the Bush years.
Increased use isn’t the only thing that has changed. If the filibuster has a point, it is to improve, or at least moderate, legislation to get it past the 60 vote threshold. That doesn’t seem to happen much anymore. With the elimination of ear marks, the majority party doesn’t have many carrots to draw opposing senators to their side. Meanwhile, the rise of the grassroots and the geographic sorting of voter ideology mean that the moderate votes that once got senators elected as “problem-solvers” are now more likely to hand them a loss in a primary. As we’ve seen with Obamacare, most Senate Republicans would rather thrill their base with another vote for a repeal that will never happen than come on board with a fix.
Geographic sorting has also skewed the number of voters a filibuster represents. Technically, the 42 senators from the 21 least populated states could block legislation or a judge while representing just over 10 percent of Americans. Legislation requiring background checks for gun purchases, which was supported by more than 80 percent of Americans, was blocked by senators representing less than 40 percent of Americans (that includes those in their states who voted for someone else).
Even if legislative filibusters continue, ending the judicial ones is important. Court appointees were one of the few things that President Bush actually delivered on for the Religious Right, and it is crucial to civil rights that conservatives not be allowed to hold seats empty until the next Republican president comes along.
Reid was right to pull the trigger now, as there is every reason to believe Republicans eventually would have when they won the White House and Senate. In 2005, it took Sen. John McCain’s “Gang of 14” to stop then Majority Leader Bill Frist from pulling the trigger. Most of those deal making senators are gone, along with their agreement to limit appointee filibusters to “extraordinary circumstances.” If that spirit returns, maybe a 60 vote filibuster can as well. Until then, good riddance.
