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The news headline flashed across the Internet around 7 p.m. Oct. 6 that Senate Majority Leader Harry Reid (D-Nev.) had triggered the “nuclear option” during debate on the Chinese currency bill. In Senate procedural parlance, that would have meant he had, by a simple majority vote, abolished the supermajority requirement for ending filibusters.
Former Senate Majority Leader Trent Lott (R-Miss.) is credited with coining the term “nuclear option” in 2003 to describe what would happen if Republicans used a then-secret procedural ploy to prohibit filibusters against judicial nominees: Minority Democrats would “go nuclear” and block even routine business.
The device was almost employed by Majority Leader Bill Frist (R-Tenn.) in 2005 (rebranded as “the constitutional option”), but a bipartisan gang of 14 saved the day by vowing not to block judicial nominations or to support the nuclear option.
A closer look at what actually happened earlier this month reveals that Reid did not pull THE nuclear trigger to abolish the 60 votes needed to invoke cloture (end a filibuster) against the currency manipulation bill. The Senate had already voted 62-38 to end debate on the bill. Reid instead unilaterally changed the rules to bar suspension motions on non-germane amendments after cloture is invoked. That was not the major nuclear blast minority parties long feared. It was more of a low-yield, atmospheric test. However, it still produced a dangerous fallout.
The whole controversy was precipitated by President Barack Obama’s repeated taunting of House Republicans for not bringing his American Jobs Act to an immediate up-or-down vote. Senate Minority Leader Mitch McConnell (R-Ky.) decided to oblige the president and informed Reid he intended to offer the president’s plan as an amendment to the currency bill. Reid would have none of that and consequently “filled the amendment tree,” thereby blocking all amendments.
After the Senate invoked cloture, McConnell and Reid negotiated a unanimous consent agreement to allow seven GOP amendments to be considered under motions to suspend the rules. While the Senate cloture rule (Rule 22) prohibits non-germane amendments after cloture, they are allowed if the Senate suspends the rule by a two-thirds vote. However, when Reid propounded the UC request, he retained an amendment Republicans had asked to drop and omitted an alternative they wanted to offer (regarding farm dust). When Reid would not alter the request, McConnell objected.
With that, Reid offered the second motion on his list for an amendment by Sen. Tom Coburn (R-Okla.) relating to foreign aid. He then raised a point of order against his own motion on the grounds that it was dilatory. Dilatory motions are not permitted after cloture is invoked. The presiding officer overruled Reid’s point of order based on precedent: Suspension motions are still allowed and are not considered dilatory. Reid then appealed the ruling of the chair and won on a 51-48 vote, thereby reversing existing precedent and killing any chance for the minority’s amendments.
Reid said his move was necessary to prevent an endless filibuster by suspension motions on non-germane amendments. McConnell responded that the GOP had already agreed to offer only seven amendments, and the move was therefore not necessary. He went on to charge that Reid’s rule change makes the Senate more like the House where floor amendments are routinely prohibited on important legislation.
Had the unanimous consent request been changed to allow the seven amendments Republicans requested, the first suspension motion on Reid’s list was McConnell’s motion to consider Obama’s jobs plan. When the UC request was not approved, Reid chose instead to make his controversial procedural stand against the second motion on his list (Coburn’s). In so doing, he was trying to avoid the interpretation that the vote to overturn the chair’s ruling was a rejection of the president’s jobs bill, even though that was the amendment on which he clearly wanted to avoid a vote.
Although Reid had introduced the president’s jobs bill “by request” in September, he attempted to call up a modified version the week after his nuclear test, but he fell 10 votes short of invoking cloture for consideration. The main change was to increase the surtax threshold on the wealthy from incomes of $250,000 to $1 million.
The president heralded the vote as proof a Senate majority supports his bill and blasted Republicans for blocking its consideration. The president’s claim overlooked the fact that three Democrats who voted for consideration said they would have voted against the measure on final passage, dooming it to defeat. Reid and the president subsequently embraced an incremental approach of breaking the jobs measure into four separate bills — one of which was blocked Thursday.
The precedent set by Reid’s nuclear test, while dismissed by some as insignificant, is just the opposite: The majority party successfully demonstrated its nuclear capability. Unless Reid reverses course and disarms, he could be looking at a renascent Republican majority in the next Congress that could use his little test blast as precedent to go fully nuclear and obliterate Democratic minority opposition with 51 votes on any issue.
Don Wolfensberger is a Congressional scholar at the Woodrow Wilson Center, a visiting scholar with the Bipartisan Policy Center and former staff director of the House Rules Committee.