Going Nuclear, Again

Posted on Mar 3, 2010

By Ruth Marcus

WASHINGTON—Get ready for the new nuclear option.

You may remember the old version, legislatively speaking, which came up during the George W. Bush-era controversy over filibustering judicial nominees. The nuclear option was the notion of moving to change Senate rules on the filibuster by a simple majority vote. Think ending a filibuster is hard? That takes only 60 votes. Changing Senate rules ordinarily takes 67.

The idea behind the nuclear option was to lower that threshold: The Senate majority leader would seek a parliamentary decision on whether the filibuster is permissible in the case of judicial nominees. If the parliamentarian determined a filibuster was allowed, that ruling could be appealed and overturned by a simple majority.

This was back in the days when Democrats clung to the filibuster as a bulwark against an overreaching majority and Republicans proclaimed the sanctity of the majority vote. Thankfully, due to the intervention of the bipartisan Gang of 14 senators, the trigger on the nuclear option was never pulled.

Soon, though, the itchy fingers may belong to Senate Democrats. If Democrats choose, as seems inevitable, to try to pass changes to the health care plan under the rules of reconciliation, only a majority vote will be required. But that’s not the nuclear option, despite some Republican rhetoric to that effect. Under reconciliation procedures, Republicans could not filibuster the measure. But they could offer amendments. Unlimited amendments. Senate Democrats already have the historical records handy: 58 votes on the Contract With America cuts in 1995, and 44 votes on the Bush tax cuts.

Here is where the nuclear move comes in. If Republicans exercise their prerogative to propose amendments and show no signs of quitting, Democrats could use the nuclear option to make them stop. After some number of amendments, the majority leader or another Democrat could seek a ruling that the amendments had become dilatory and abusive. If the parliamentarian were to disagree, whoever is chairing the Senate at that time could overrule him. Republicans could appeal that ruling. Democrats could move to table the appeal, essentially upholding the decision that no additional amendments would be allowed. And—this is the important part—that would require only a majority vote.

As with all nuclear strikes, this one could have devastating consequences—for the ability of the Senate to get anything else done this year. Perhaps Republicans will blink first. But having a weapon in your arsenal always means there is a risk it will be used.

Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.

© 2010, Washington Post Writers Group

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