A risky parliamentary procedure might get health reform through the Senate.

How to fix health policy.
Jan. 25 2010 4:52 PM

Going Nuclear

A risky (but justifiable) path to passing health care reform.

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The point is that it can be done. Indeed, three modern vice-presidents—Richard Nixon, Hubert Humphrey, and Nelson Rockefeller—sought to rid themselves of the infernal Rule 22 in just this way. In each instance the Senate refused to go along. In 2005 a fourth vice president, Dick Cheney, came close to attempting a fourth try in collaboration with then-Senate Majority Leader Bill Frist. Cheney and Frist wanted to disallow filibusters just for judicial nominations. In the end, Frist agreed not to drop the nuclear bomb in exchange for an agreement from Democrats to back off a bit on their use of the filibuster.

One difficulty Democrats would face in adopting the nuclear option is simple hypocrisy. They denounced the nuclear option loudly when Frist and Cheney threatened it in 2005. Even Harkin, then as now a sturdy filibuster critic, condemned the Republicans' threat to use the nuclear option on the grounds that changing the rules by a simple majority just wasn't cricket. Senate Majority Leader Harry Reid, in his 2008 book The Good Fight, called the filibuster "a perfectly reasonable tool" and denounced Frist's nuclear-option threat in near-biblical terms:

[T]hey were threatening to change the Senate so fundamentally that it would never be the same again. In a fit of partisan fury, they were trying to blow up the Senate. Senate rules can only be changed by a two-thirds vote of the Senate, or sixty-seven senators. The Republicans were going to do it illegally and with a simple majority, or fifty-one. Vice President Cheney was prepared to overrule the Senate parliamentarian. Future generations be damned.

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Obviously, if Reid were to attempt a nuclear option now, he could expect these words to be thrown back in his face.

A greater obstacle, though, is that if the Democrats were to push through and eliminate the filibuster using the nuclear option, they could expect massive retaliation from Republicans through every conceivable type of petty procedural obstruction. This is all too easy to achieve in the Senate, where you can scarcely go to the bathroom without requesting unanimous consent. Sen. Bernie Sanders, an independent from Vermont, got a preview of what a Senate nuclear winter might feel like when he introduced a purely symbolic single-payer amendment to the health-reform bill. Sanders knew it would fail, but wanted to make a stand. He asked unanimous consent that the Senate dispense with the reading of the amendment, which was several hundred pages long. This is an utterly routine courtesy. But Sen. Tom Coburn, R-Okla., a hard-right opponent of health reform, was feeling pissy. He refused. As a result, the clerk had to read the entire thing. Eventually Sanders gave up and withdrew his amendment.

Obviously Democrats don't want to bring the workings of the Senate to a complete halt. On the other hand, the Republican opposition is already edging closer and closer to achieving that end through overuse of the filibuster. Between 2007 and 2009, the GOP's indiscriminate use of the filibuster brought the number of cloture motions filed to an unprecedented 139, a record the current Congress is on track to match. At some point, the Democrats have to ask themselves whether they have anything to lose. They may have reached that breaking point already.

Update, Feb. 12: No sooner did Harkin introduce his bill modifying (not even eliminating!) the filibuster than Reid dismissed it. "It takes 67 votes" to change Senate rules, Reid said, "and that, kind of, answers the question." Asked about the nuclear option (now favored by Sen Tom Udall, D., N.M.), Reid indicated he wouldn't support it.

E-mail Timothy Noah at chatterbox@slate.com.

Timothy Noah is a former Slate staffer. His  book about income inequality is The Great Divergence.

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