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Why Republicans are unlikely to reverse the 'nuclear option'

- December 4, 2014

World’s most deliberative body, chatting. (Screenshot from http://c-span.org, November 21, 2013)
Senate Republicans, together with their incoming freshmen, are scheduled to meet behind closed doors on Tuesday to debate the future of the Senate’s “nuclear option.” That term of course refers to the Democrats’ procedural move in November 2013 that empowered a simple (rather than super) majority to cut off debate on executive and judicial nominations (save for the Supreme Court).  Politico reports that under the leadership of incoming majority leader Mitch McConnell (R-Kentucky), Republicans are unlikely to restore the right of senators to filibuster nominations.
Assuming Republicans keep the Democrats’ 51 vote cloture threshold for nominations, the decision would hardly be surprising. Still, it’s worth thinking aloud a bit about why Republicans might refuse to reverse the nuclear precedent and what it tells us about institutional change in the Senate more broadly. After all, McConnell did charge on the Senate floor in July 2013 that if the Democrats went nuclear, Senate majority leader Harry Reid (D-Nevada) would go down as the “worst majority leader ever.”  Or, in tweet form:

Why does the nuclear option now seem so sticky?
First, it’s not because Senate Republicans lack the votes to change it, an argument suggested by Sen. John Cornyn (R-Tex.). “There is a right way to do it. … It takes 67 votes,” Cornyn argued, referring to the formal process for amending Senate rules that requires a supermajority of 67 to cut off debate on a rule change.  Of course, as Cornyn acknowledged, Senate Republicans could also just reverse engineer the nuclear option by adopting a new precedent by majority vote that reinstates the original version of the Senate’s cloture rule.  But some Republican senators object to “breaking the rules to change the rules,” the charge they levied against Reid and the Democrats.  Of course, that’s not technically true.  In fact, Democrats never formally changed the underlying cloture rule.  That means that Republicans would simply be restoring by majority vote the previous interpretation of the rule that is already in the Senate rulebook.  Instead, Senate Republicans have essentially just created a straight jacket for themselves to justify keeping the filibuster ban in place.
Second, some suggest that Republicans’ future parliamentary needs under a Republican president lead them to favor the filibuster ban. To be sure, if Republicans win the White House in 2016 and hold the Senate, they would find it easier to confirm nominees strongly opposed by Democrats.  That would be sweet revenge for the GOP (or in Utah GOP Sen. Orrin Hatch more statesman-like terms, it would allow the GOP to “teach those blunderheads that they made a big mistake.” Still, lawmakers don’t typically think primarily about their future parliamentary needs in crafting institutional rules.  If they did, why would Democrats have gone nuclear in the first place given the possibility of Republican White House benefiting from the filibuster ban in the near future?
Third, and more likely, Republicans understand that they are unlikely to be harmed by the filibuster ban in the short term.  And in the immediate term, the GOP seems unwilling to divert their new majority with a brawl over the rules.  In a period of divided government, a Senate majority has other tools to block presidential nominees. Senate Republicans in the late 1990s after all perfected the art of bottling up Democratic nominees without resorting to the filibuster.  There will be few occasions in the coming 114th Congress in which Republican priorities will be endangered by simple majority cloture for nominees.  If they oppose an Obama nominee, they can fail to report the nominee from committee or refuse to call up a nominee for a vote.  (Nor are Democrats likely to be recognized in a Republican Senate to offer the non-debatable motion to go into executive session where nominations are considered.)  Even if nominees for politically must-fill vacancies draw some GOP opposition, the GOP leader can move to consider the nomination and then rely on Democrats to provide the vast majority of votes for cloture (if required) and confirmation. That frees most Republicans to take positions against the nominee and yet still allow the GOP to claim credit for governing.  (Win-win!)
Finally, the nuclear option is likely to prove sticky because most senators from both parties have quickly adapted to the new parliamentary regime.   Sen. Richard Shelby (R-Ala.) suggests in effect that Republicans have little choice: “It’s hard to put the toothpaste back in the tube.”  Or, as Sen. Roy Blunt (R-Mo.) put it to Politicothe Democrats’ change was “long-term and permanent.”  Indeed, if Republicans keep the Democrats’ change, we might think of the filibuster ban as having been institutionalized– incorporated into the Senate’s parliamentary fabric. Remarkably (given Team Mitch’s Harry Reid tombstone and the Republicans’ trenchant reaction to the Democrats’ nuclear move), Blunt also argued that “I think it’s well within the traditions of the Senate for a majority to decide nominations and a supermajority to decide legislation.”  Already, Republicans have both rationalized and internalized the nomination filibuster ban as part and parcel of Senate “tradition.”   As Steve Smith and I argued some time ago, even the most hallowed Senate traditions can be unmasked as no more than the by-product of hard-fought politics.