Making Senate Sausage & the Nuclear Option

Something very important happened in the Senate on Thursday, or at least it is possible that something very important happened…depending on whether what happened stands the test of time. The key institutional difference between the Senate and the House is the role of the minority in the legislative process. In the House of Representatives, the institution is very much top-down and hierarchical (partly b/c of necessity — size makes floor time a scarce commodity). However, in the Senate every senator is an “island of power.” The minority has a number of powers that make the Senate a supermajoritarian institution. The most significant of these is the filibuster.

However, less well known and relevant to what happened on Thursday is the right of the minority to offer any amendment (no germaneness rule) to a bill proposed by a majority. The absence of a germaneness rule (in the House, all amendments must be “germane” to the bill they are amending…for example an amendment to an agricultural appropriations that contains a subsidy for cotton farmers would be germane while an amendment to prohibit partial-birth abortions would not) in the Senate is one of the reasons individual senators and the minority are so powerful. There is no way to prevent Senators from getting their preferred legislation considered on the floor. This is also why committees aren’t as important in the Senate — in the House committees are much more effective gatekeepers as the bills they report to the floor cannot become the vehicle for any and every interest a member of the House might have.

This brings us to what happened on Thursday. First, let me set the stage politically. President Obama, starting with a joint-session of Congress, has been pushing his jobs bill, the American Jobs Act. Obama has clearly been using it as a bludgeon with which to hit the Republicans in Congress over their collective heads on the campaign trail. Obama’s campaign reelection team has clearly determined that following the Harry Truman historical lesson (run against a “Do Nothing” Republican Congress) is the best path to victory for Obama, given the sagging economy. Part of that has been a rhetorical attack on the Republicans, taking them to task for blocking a full vote on his American Jobs Act in its entirety. While the Republicans would clearly like to break up the bill and only pass the parts that they like (there are a number of ‘poison pills’ in the AJA for Republicans, including tax increases on high income earners), Obama has called on Congress to “pass the bill” now and in full.

There’s a significant problem with this line of attack for President Obama, however. Namely, a number of members of Congress from his own party have expressed skepticism and concern over the AJA…particularly the fact it raises taxes on the cusp of a possible double-dip recession. It’s entirely possible that the AJA, if put up for a vote in the Senate, would be rejected by a bipartisan cross-section of the Senate. That would be a triple blow — refuting the rhetorical argument Obama has been stumping with, dealing Obama a bipartisan defeat of his jobs bill, and eliminating any argument Obama might offer that would place blame for the economy at the foot of a do-nothing Congress.

So on Thursday, the Senate Minority Leader, Mitch McConnell, very cleverly attempted to add, as an amendment, the entire AJA to a bill that addressed recent currency manipulations by China. Reid objected to McConnell’s amendment and the decision went to the chair (occupied by the Democratic Senator from Alaska at the time) and he ruled against Reid on the advice of the Senate parlimentarian. The Hill has the rest of the story:

In a shocking development Thursday evening, Senate Majority Leader Harry Reid (D-Nev.) triggered a rarely used procedural option informally called the “nuclear option” to change the Senate rules.

Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of a bill.

Reid’s coup passed by a vote of 51-48, leaving Senate Republican leader Mitch McConnell (R-Ky.) fuming.

Reid’s move strips the minority of the power to force politically-charged procedural votes after the Senate has voted to cut off a potential filibuster and move to a final vote, which the Senate did on the China measure Tuesday morning, 62-38.

This is a significant development. Reid essentially, on the fly, reduced the power of the minority in the Senate. This could have lasting ramifications. While Republicans had, in the past, raised the possibility of invoking the nuclear option (over Bush’s judicial nominations, for example), the then-majority did not follow through with it. Reid did exactly that on Thursday. The reason minority rights have been perserved in the Senate all these years is the shadow of the future: every current majority knows its status is temporary and they will, one day, once again be in the minority. It is especially odd given the strong possibility (even probability) that Republicans will take back the Senate in 2012 (Democrats are defending twice the number of seats in 2012 that Republicans are). Reid appeared to be unsure of whether or not he did the right thing, and I think there’s a strong possibility he will walk this back and change the rules again. If not, the elimination of the post-cloture minority right to offer amendments is another blow to the rights of the minority in the Senate…making it a little less the unique institution it has always been. Stay tuned…

UPDATE: As expected, the Republicans have threatened retaliation. They will use their powers as a minority to slow down business in the Senate…making regular business much more difficult. Reid’s move has backfired…the question is whether or not this unilateral ‘nuclear option’ chance to the rules will survive or will the Senate Dems and Reid back down? Stay tuned…

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Date: Friday, 7. October 2011 16:28
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