Senate avoids ‘nuclear option’ and retains arcane rules, but what’s in it for voters?

Walter Shapiro
Senate avoids ‘nuclear option’ and retains arcane rules, but what’s in it for voters?

As the world survived the nuclear-tipped 1962 Cuban Missile Crisis, Secretary of State Dean Rusk said with relief, “We’re eyeball-to-eyeball, and I think the other fellow just blinked.”

Tuesday morning, more than a half century later, the Senate survived its own eyeball-to-eyeball confrontation. The Senate came up with a compromise, brokered by 2008 GOP presidential nominee John McCain, to limit aggressive Republican use of the filibuster to block confirmation of President Barack Obama’s appointments. In return, Democratic Majority Leader Harry Reid abandoned his threat to use what insiders hyperbolically call “the nuclear option” to permanently change the Senate rules on when filibusters would be permitted.

OK, compared to the George Zimmerman verdict and the baseball All-Star game, this does not sound like nail-biting, edge-of-your-seat stuff. Senate procedures are about as ancient and easy to decipher as Babylonian cuneiform tablets. But like so much in life, the devil is in the details: The congressional gridlock that voters hate stems in part from the Senate’s arcane rules on filibusters.

Even though it is never mentioned in the Constitution, the Senate tradition of unlimited debate means that 60 votes are needed to pass anything controversial. The post-Newtown crusade to expand background checks for gun purchases failed in the Senate in April because supporters could only muster 54 votes (three more than a majority) to prevent a filibuster. Small wonder that all the internal politics in the Senate revolve around gaining a super-majority of 60 votes required for cloture to shut off extended debate.

The best symbol of Tuesday’s spirit of compromise were the 17 Republican senators who joined with all 54 Democrats to end the talk-athon blocking the nomination of Richard Cordray to become director of the Consumer Protection Financial Bureau. As part of the tentative deal, Republicans have agreed to allow a vote on fresh Obama nominees to the National Labor Relations Board. Without such a GOP pledge, the NLRB would soon exist in name only, since without new members it would lack a quorum starting next month.

Even without invoking Gary Cooper in “Mr. Smith Goes to Washington,” it is easy to romanticize the talk-until-you-drop filibuster. In March, Kentucky Republican Sen. Rand Paul galvanized both libertarians and liberals by droning on for 12 hours about the drone war. And last month Wendy Davis, a Democratic Texas state senator, talked so long that she ran out the clock to block passage of an anti-abortion bill.

Of course, Paul and Davis have little beyond their new-found fame to show for their exploits in logorrhea. American drone warfare has faded from the headlines without the establishment of clear guidelines for oversight. And the Texas legislature, under the prodding from Republican Gov. Rick Perry, came right back with a special session to the pass the abortion bill that sent Davis to the barricades.

In defending the filibuster, senators in Washington often invoke the proud traditions of the self-proclaimed “world’s greatest deliberative body.” For most voters these days, that is about as convincing as Russians invoking the proud traditions of the Soviet-era Politburo. While brief interludes of bipartisan cooperation have broken out this year (mostly notably on immigration reform), the Senate is mostly as fractured and fragmented as the rest of American political life.

The most persuasive argument for the filibuster, in theory, is that it gives voice to unpopular causes and it allows Congress a chance to reconsider a panicked rush to legislate. But, in truth, the kind of legislation that should require closer scrutiny is rarely subjected to a filibuster. A prime example: the 2001 Patriot Act raced through the Senate with only a single dissenting vote.

Once the filibuster was kept in a legislative closet labeled, “In emergency, break glass.” Now it is brandished for the narrowest of partisan causes. Conservative Republicans, for example, loathe the NLRB and tried to use the filibuster to declaw it. Cordray was first nominated to head the Consumer Protection Financial Bureau in 2011 and, because the Democrats couldn’t muster 60 votes until Tuesday, he has been operating under temporary authority since then.

In a sense, the history of the filibuster mirrors the ethos of 21st century Washington. Once there were informal norms limiting partisan excess. Now the guiding principle has morphed into, “If something is not explicitly banned by law, then brandish it like a club to win short-term political gains.”

What the 60-vote threshold in the Senate means is that presidents can boldly legislate only after political landslides. The 1974 Watergate election gave Democrats a big enough majority to permanently reduce the number of votes needed for cloture from 67 to 60. And Obama’s sweeping 2008 victory temporarily provided his party enough Senate votes to pass health care reform in the face of a united Republican minority.

The best defense against ill-considered legislation is not the filibuster, but something called elections. In 2010, partly because of the unpopularity of Obamacare, the Republicans picked up 63 House seats and six Senate seats. The result of these GOP gains (fortified by Republican control of redistricting for the House) is that Obama has been legislatively stymied for almost three years. Even if the filibuster didn’t exist in the Senate, Obama would be hard-pressed to get a Mother’s Day resolution through the GOP-controlled House.

Tuesday morning, after the filibuster furor ended in a temporary truce, Harry Reid said, “I think we see a way forward that would be good for everyone.” Democrats can point to the guarantee of votes of key Obama nominees like Cordray, while Republicans still retain the power to use the filibuster in future confirmation fights.

Like many Washington deals, it is hard to see what it is in Tuesday’s compromise for ordinary voters. Especially those voters who cling to the civics-book belief that the Senate operates under majority rule.