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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Should Democrats consider "the nuclear option" for passing health reform?
Should Democrats consider "the nuclear option" for passing health reform?

"Mein Führer! I can walk!"— Peter Sellers in Dr. Strangelove, just before the world ends in a nuclear conflagration

It is fundamentally absurd that the Democrats can't pass health care reform (or much else of any importance) merely because their effective Senate majority, which includes two independents, dropped from 60 to 59. Fifty-nine is a lot of Senate seats! Democrats may take the number for granted, because as recently as the 1960s and 1970s, they often controlled more than 60. But the last time the GOP controlled this many Senate seats was after the 1920 election that put Republican Warren G. Harding into the White House. If Republicans enjoyed a 59-vote majority today, they'd have no time to take seriously any opposition claim that the voters had sent "a very powerful message" by depriving them of a 60th vote. They'd be too busy turning cartwheels.

I'm not suggesting the Democrats use their partisan advantage to emulate the brazen illegal exploits of Harding's Ohio Gang. But they ought to consider the GOP's parliamentary reasoning in 2005, when it had 55 Senate seats—as large a majority as it had enjoyed in seven decades. Sen. Trent Lott, R-Miss., then-chairman of the Rules Committee, termed it "the nuclear option," but the gambit in question had, until then, gone by the less sensational name "the constitutional option." It was, and remains, a legitimate way to eliminate the filibuster by a simple majority vote.

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The health care bill has already cleared the Senate, but for it to become law, either the House must pass the Senate bill without any changes (something that's not likely to happen) or both House and Senate must pass the bill again after negotiating their differences and arriving at a common bill or conference report. The problem with the latter course is that the Massachusetts special election deprived Democrats of their 60th filibuster-smashing vote. Many people, including myself, have pointed out that the requirement for a 60-vote majority (which has become ever-more routine for major legislation during the past 20 years, and especially since the Democrats retook the Senate in 2007) is anti-democratic and that the filibuster ought to be eliminated. The problem is how. Senate Rule 22, which sets the cloture majority at 60, says you need even more votes (67) to eliminate the filibuster itself through a rule change. The challenge therefore becomes finding a way to render Rule 22 itself null and void.

The nuclear option achieves that.

By whose authority do the Standing Rules of the Senate govern the Senate? By the Senate's alone. But what is the Senate, exactly? It is part of a larger entity, the Congress, that expires every two years after the entire House and one-third of the Senate stands for election. We currently have the 111th Congress. In Jan. 2011 we'll have the 112th. In Jan. 2013 we'll have the 113th. And so on. The first step in exercising the nuclear option, then, is for the president of the Senate (i.e., Vice President Joe Biden) to state, in effect, "Previous Congresses can't tell this Congress what to do. Senate Rule 22 has no force because it was never agreed to by the current Senate." Biden would then state, "Under Article I, Section 5 of the Constitution, this current Senate may 'determine the rules of its proceedings.' I say we change Rule 22 to eliminate the filibuster." Or modify it, if he wanted to opt for an intermediate reform such as a proposal by Sen. Tom Harkin, D-Iowa, to subject filibusters to a series of cloture votes that begin with a 60-vote requirement and gradually work their way down to a 51-vote requirement. Biden would then put the new rule to a simple-majority vote. After that passed, he would put the health reform conference report (or any number of other Obama initiatives currently stalled in the Senate) to a simple-majority vote.

Senate Republican Leader Mitch McConnell got a problem with that? Too freakin' bad!

Granted, this is a slight oversimplification. For one thing, Biden might have to wait until Jan. 2011 to do all this, assuming the Senate remembered to reaffirm the Standing Rules back at the start of the 111th Congress in Jan. 2009. For another, once Biden put the rule change to a vote, the change itself would be subject to Senate debate, raising the maddening question of how to end that. He might end it by saying that in the absence of any governing cloture rule, he would follow the parliamentary norm, which favors simple majority votes. Or he might do it by declaring the filibuster itself, or at least the 60-vote cloture requirement, unconstitutional, as some believe it to be. Or some senator could raise that as a point of order. (I refer lovers of parliamentary minutiae to a 2005 report by the Congressional Research Service and a paper that appeared in the winter 2005 Harvard Journal of Law & Public Policy.)

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.

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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