The nuclear (or Constitutional) option

Way back in 2005, the Democrats threatened to filibuster President Bush’s Supreme Court nominations.  Senate Majority Leader Bill First threatened them with what came to be called the “nuclear option” but Frist preferred to call the Constitutional option.

This was simply for Vice President Cheney, as presiding officer of the Senate, to determine that the filibuster was unconstitutional.  This ruling could be appealed, but could be upheld by majority vote.

The Constitutional argument is that the Constitution requires supermajorities for only certain things, such as ratification of treaties by the Senate or overriding the President’s veto.  By implication, everything else is decided by majority vote.  The Constitution says that “each House may determine the Rules of its Proceedings.”  The Constitutional argument is that every two years there is a new Congress, which is entitled to set new rules without being bound by precedent.

The Senate Democrats responded with outrage.  They threatened to use procedural tactics to bring Senate business to a halt, but in the end they gave in.

Now the shoe is on the other foot.  The Republican minority in Congress is exploiting every possible procedural tactic to stall routine business.  I believe there is a place for the filibuster, the “hold,” and the objection to unanimous consent as a way to make the Senate stop and think twice rather than acting heedlessly.  But this requires restraint on the part of individual members so that the Senate can transact its business.  Without such restraint, the so-called nuclear option might be the lesser evil – if the Democrats had the gumption to attempt it, or even threaten it.

The nuclear option is not the same thing as budget reconciliation, which has been used routinely by Congress no matter which party is in power.  This occurs when the House of Representatives and the Senate pass bidget bills that are similar, but not quite the same, and a joint committee hammers out a compromise bill to reconcile them, which can be passed by majority vote with no filibuster.  It is intended for just such situations as health care reform, when the Senate has passed a bill, the House of Representatives has passed a bill and minor changes are needed to reconcile them.

When I studies political science in college, we contrasted the practical, pragmatic American political culture with the ideology-driven French and the inability of their Chamber of Deputies to form a stable government nor address national problems.  Now it is our government that is in gridlock.  Americans are admired for many things, wrote foreign correspondent James Fallows in The Atlantic Monthly recently, but in all his world travels, he never heard anybody say, “I wish we had a Senate like yours.”

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