'Nuclear option' 101: Why the big fight over the Senate filibuster?

Senate majority leader Harry Reid (D) of Nevada may be on the verge of unlocking the “nuclear option” to the Senate’s rules and procedures. It would seem to be a mere procedural change in Senate operations, but make no mistake, it would fundamentally change how Congress works.

The showdown begins Tuesday afternoon, when Senator Reid scheduled a vote to confirm the nomination of Richard Cordray, head of the Consumer Financial Protection Bureau (CFPB).

If Republicans block Mr. Cordray and a slate of other presidential nominees, Democrat Reid has vowed to “do what I need to do so this doesn't happen anymore.” Here are answers to six basic questions about the "nuclear option."

1. How would the rules actually change?

What Reid could do is use one interpretation of Senate rules – that the rules can be changed by a vote of 51 senators and not 67, as the case has been historically – to make it possible for the Senate to confirm presidential appointments to the executive branch with only a simple majority of the Senate. 

Today, executive appointments such as secretary of State or chairman of the Federal Reserve can be filibustered, requiring 60 votes to overcome. 

Changing the rules with a vote of 51 senators is the so-called nuclear option because, once the precedent is established, the entire structure of the Senate could come crumbling down, say Republicans and Senate institutionalists such as Sen. Carl Levin (D) of Michigan.

2. What’s the genesis of the problem?

Senate Democrats are steamed that their Republican colleagues are unduly delaying President Obama’s appointees to Cabinet positions and other key posts in the executive branch.

Take Mr. Cordray.

After Republicans vowed to block any CFPB chief because they want changes in the laws that govern the agency, Mr. Obama in January 2012 moved to install Cordray anyway. The White House claims the action was a constitutionally permissible recess appointment; Republican lawmakers contend that Obama made an end-run around the authority of the legislative branch. 

Democrats say Republicans are using the Senate confirmation process to hurt agencies they don’t like, refusing to permit votes not only on the CFPB nominee, but also to top posts at the Environmental Protection Agency, the Department of Labor, and the National Labor Relations Board – votes that Reid also wants to hold on Tuesday. Republicans, Reid said last Thursday, are twisting the Senate’s “advise and consent” role into one of “deny and obstruct.” 

Republicans counter that they haven’t defeated a single Democratic cabinet appointee and have done a fair job confirming federal judges, too, rejecting only two of the more than 190 who have come to the floor. Senate minority leader Mitch McConnell ripped Reid on Thursday, accusing him of manufacturing a crisis in a bid to ram Obama appointees through Congress at undue speed.

3. Has the Senate dealt with this before?

Since the Senate procedure for ending debate, known as “cloture,” came into being in 1917, it has been formally changed six times, most recently in 1986.

Moreover, proposals to repeal and amend filibuster rules have been advanced "in almost every session of Congress" since cloture came into being, a Congressional Research Service report published in January found.

So yes, the Senate has been to the breaking point on the filibuster several times. That’s largely because the Senate has had one defining characteristic from its very beginning: It’s slow.

Designed by the Founding Fathers to calm the hand of the majoritarian House, Senate rules are structured to protect the rights of the minority party. The flip side of that is frustration for the majority, no matter which political party, which often feels that its program is being held captive by the other side.

Whenever emotions run hot, informal agreements have supplemented formal rule changes to protect the rights of the minority while making it easier for the majority to act. In 2005, for example, the “Gang of 14” (five of whom still serve in the Senate) banded together to prevent Republicans from going "nuclear" over Democratic foot-dragging on confirming President George W. Bush’s judicial nominees. The group vowed that votes on judicial nominees would be allowed to progress in “all but extraordinary circumstances.”

At the beginning of the current Congress, too, a bipartisan group worked out two formal changes to Senate rules (one temporary, the other permanent) to expedite the legislative process and, in some cases, to guarantee the minority party that votes would take place on at least two of their amendments to any bill.

During that debate on Senate rules earlier this year, leaders McConnell and Reid struck a similar informal deal: Reid wouldn’t go nuclear, and McConnell would eventually yield to votes on Obama appointees except in “extraordinary circumstances.”

The problem, from 1917 to 2005 to 2013, is that nobody agrees on what “extraordinary circumstances” are -- or what constitutes undue obstruction.

Take the Senate confirmation of Chuck Hagel, now secretary of Defense. On Thursday, Reid noted that Mr. Hagel’s nomination stood in the Senate three times longer than the average wait for nominees to his post.

Sure, Republicans say, but Hagel was held up a mere 34 days. Is that wanton obstruction?

4. Why do some see this as the “end of the Senate”?

The minority party's ability to block what the Senate majority wants to do has long been at the heart of the Senate. While the House majority can hammer legislation through on a party-line vote, the Senate majority party rarely has the opportunity to be so brazen.

Instead, Senate rules did much to make the chamber “the world’s greatest deliberative body,” a place where nothing happened without compromise. (Senators now use that moniker more in mockery than respect, given the seeming inability to find consensus in recent years.)

The need to find common ground would evaporate without the filibuster rule, irrevocably changing the place for the worse, Senate purists argue.

“This isn't about a change of rules,” said Sen. Lamar Alexander (R) of Tennessee. “This is about changing the Senate, changing its character.”

5. Is this really a big deal?

If Reid goes nuclear, the answer is yes.

First, it would allow the president to fill out his executive team with little opposition from Senate Republicans.

Second, it may lead Republicans to go nuclear in their own way – by trashing all of Obama’s legislative proposals and judicial nominees, where they would retain the power of the filibuster.

“If Senator Reid changes the character of the Senate, then the Senate ceases to function. We'll take our case to the people, we'll argue for a new majority,” said Senator Alexander on Thursday.

Assume, then, that Republicans win control of the Senate in 2014, hypothesizes Sen. Orrin Hatch (R) of Utah.

“Once you start down [the nuclear option] road and open what Senator Reid has characterized as a Pandora's box, then there's no end to what one side or the other can do,” Senator Hatch says. “And they have to be very careful, because a lot of the things that they hold very dear could go by the wayside if the majority was to change.”

In other words, why should the GOP stop at executive nominees? Given a gerrymandering-aided lock on the House of Representatives, Republicans could blast through national “right to work” laws anathema to labor unions, finish up siting a nuclear waste disposal site in Nevada (Reid's home state), or repeal Obama's signature health-care reform law.

“In fact, the more we think about it,” Alexander said, “the more attractive it becomes.”

Americans detest gridlock in Washington. But how would they feel about rapid-fire governing and whipsawing of federal legislation every handful of years?

6. Could the Senate fix this?

“Well, as you can see,” says Hatch, “this is a real mess, and it's not a good mess.”

But opportunity exists for it to be rectified before things get nuclear.

The entire Senate is set to meet Monday night for a rare, bipartisan conference to talk about the body’s rules. That meeting, stemming from a request Sen. Roger Wicker (R) of Mississippi made to Reid on the Senate floor last week, could help to bring the parties together. Of course, it could also harden party divisions ahead of Tuesday’s vote.

The possibility also exists that senators will strike a deal on the nominees up for confirmation. Sen. Rob Portman (R) of Ohio has been trying to prompt a compromise on Cordray.

Moreover, Hatch has suggested a way forward on two National Labor Relations Board nominees who also received controversial recess appointments: Dump them in favor of two new labor lawyers, and the problem may very well be solved.  

“All the president has to do is appoint two others who have the same philosophy and they would get through the Senate,” Hatch says. “But because the rules were broken, the procedural rules were broken, the Republicans had no choice but to stand up and say, ‘That's not right.’ ”

The president’s nominees to the EPA and the Labor Department are likely to get enough bipartisan support to pass without a nuclear moment, having already being held up by Republican senators for some time.

But Reid has scheduled the first vote Tuesday on Cordray, arguably the most visible of all the presidential nominees currently awaiting confirmation. That means the parties will have to decide right away: Make up or go nuclear.