Reid's Filibuster Reform Threat Seems Shaky, But It's All He's Got

Sen. Harry Reid's threat to change Senate rules to allow a majority vote on presidential nominations may be simply that: a threat. And according to an analysis by The Atlantic Wire, that threat is iffy.

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Senate Majority Leader Harry Reid's threat to change Senate rules to allow a majority vote on presidential nominations may be simply that: a threat. Republicans need to believe that Reid stands ready to pull the trigger on the threat, evocatively dubbed the "nuclear option." According to an analysis by The Atlantic Wire, that threat is iffy.

In theory, presidential nominations already require a majority vote. But in our filibuster-happy Senate, votes involving anything controversial are assumed to need 60 votes by default—enough, that is, to override any filibuster. The filibuster has become a threat of its own, and an effective one, given how frequently it has been employed. All the minority party in the Senate needs to do is lackadaisically point to the filibuster, perhaps with a yawn, and the Senate is transformed into a supermajority-dependent institution.

With seven appeals court nominations (for an average of 100 days tomorrow) and eight other appointees including Cabinet positions awaiting a Senate vote, Reid resurrected a long-standing threat to remove the ability to filibuster nominations. The vote to make that change can't be filibustered, so, with 52 Democrats in the Senate plus two independents that caucus with the party, Reid appears to have enough to do so on a party-line vote.

But is it a real threat? At the end of May, we reported on a presumptive vote count for the procedural change. At that point, it seemed likely that the vote would be close, with Reid holding 51 votes, not all secure. We also pointed out that he only really needed 50—in the case of a tie, Vice President Joe Biden gets to vote. One assumes that, in order to get his boss' appointees in place, Biden would do so. But that May calculus was in May—before the threat seemed real, and before New Jersey Democrat Frank Lautenberg died and was replaced with New Jersey Republican Jeff Chiesa.

On Friday, The Atlantic Wire reached out to the offices of several senators who had initially expressed reservations about those moves. Staff for Sen. Carl Levin of Michigan reiterated his opposition to the move. A spokesperson for Sen. Max Baucus of Montana told us that he has not yet decided whether or not to support the move, but "believes it’s critical for any President to have their team in place to best serve the American people." The legislative director for Sen. Mark Pryor of Arkansas, who faces an uphill reelection campaign next year, said that the senator "thinks that all rules should primarily go through the Rules committee," but he's undecided on this week's vote. The office of Sen. Jack Reed of Rhode Island didn't respond to our outreach, but The Hill reports he's likely to support Reid. (That report also suggests that Delaware's Tom Carper is similarly on the fence.)

Which means that the vote breakdown looks like the chart at right: 48 likely votes in support, three (Reed, Carper, and Maine independent Angus King) as likely supporters, two (Pryor and Baucus) uncertain, and 47 in opposition. In other words: Reid's threat is no sure thing.

Last week, the majority leader announced that the vote showdown will be tomorrow. Here are the possible outcomes.

  • 1. All of the nominees are filibustered, and Reid brings up a vote on the rules change.
  • 2. All of the nominees are filibustered, and Reid backs down.
  • 3. All of the nominees are approved, and Reid puts his powder back into storage.

But the most likely—and most tricky—outcome is this: Some nominees are approved and some are filibustered, forcing Reid to decide if the obstruction is sufficient to warrant the "nuclear option." In our outreach to senators, we posed the question of threshold; that is, how many filibusters are acceptable before the rules need to be changed. None were specific.

Reid's obvious hope is to avoid that moment by building support for a straight vote on everyone in consideration. On Sunday, Reid made the case for the move as reported by The Hill.

“Is there anyone out there in the real world that believes that what’s going on in Congress of the United States is good? Our approval rating is lower than North Korea’s,” he said on NBC’s “Meet the Press”. ...

“The changes we’re making are very, very minimal. What we’re doing is saying, ‘Look American people, shouldn’t President Obama have somebody working for him that he wants?’ The 15 people that we’ve filed cloture on that are pending they’ve been waiting an average of nine months.”

Nothing like extended debates over procedural issues to generate good press. But his point is taken: The perception that the Congress can't get anything done is not endearing it to Americans. Whether or not he thinks fixing that is worth risking the fury of Republicans, as they have threatened in turn, remains to be seen. If Reid does pull the trigger (is that how you detonate a nuke?), some consolation for the minority party: there's a good chance they'll be the majority in a few months' time. Of which Reid is very well aware.

In a perfect world, there would be little need to talk about the procedural systems of the United States Senate. In a slightly-less-perfect world, considerations of changes to those systems wouldn't involve egregious hyperbole suggesting the institution was on the brink of destruction. It wouldn't be an institution that trades threats of filibusters for threats of rules changes for threats of retribution. But we don't live in anything close to a perfect world. In our world, the chamber is predicated on melodrama worthy of the Real Housemembers of Capitol Hill. Except for the Senate. But you get the point.

Photo: Reid and McConnell, looking displeased earlier this month. (AP)

This article is from the archive of our partner The Wire.