Filibuster Fight Makes for Strange Bedfellows

This article is from the archive of our partner

It has been more than a year since Harry Reid set off a mushroom cloud in the Senate chamber, becoming the first leader in history to use the nuclear option to change the rules. Republicans vowed revenge.

But since taking over the majority, Republicans haven't done anything about it. The vitriol over the rules change has quieted to a whisper. And in internal GOP meetings on whether to reverse it earlier this year, members were not only divided on what to do, but not one seemed particularly fired up about doing anything.

Now two Republicans from very different ideological backgrounds hope not to reverse Reid's rules change, but to expand it. And the Democrats who supported Reid going nuclear now find themselves saying, not so fast.

Sens. Lamar Alexander and Mike Lee are pushing legislation to once again change the Senate's rules, this time allowing a simple majority of senators to approve of any White House nomination, including Supreme Court justices.

The difference: They are adamantly against using the nuclear option to get there. Unlike Reid, Alexander and Lee plan to operate within the Senate's rules to change them. And it's going to take two-thirds of the chamber to get there.

Sixty-seven senators rarely agree on anything other than naming post offices and honoring veterans in the current political climate, but Alexander and Lee are hopeful that they can convince two-thirds of their colleagues to change the way the chamber operates.

But a change that makes it easier for the ruling party to confirm Supreme Court justices is a difficult pill for either side to swallow. Sure, Republicans hold the Senate majority now, but they could easily lose it in 2016. And there's no guarantee that the next president will be a Republican, either. Why change the rules to make it easier for a future Democratic majority to confirm, say, a pro-gay marriage or anti-gun judge nominated by Hillary Clinton to the Supreme Court?

Democrats are just as worried. For them, the issue comes down largely to abortion rights. "If Republicans win the White House and keep the majority in the Senate, they could confirm a judge who would overturn Roe [v. Wade] with 51 votes," a Senate Democratic aide said. That issue alone makes it very unlikely that the necessary 13 or more Democrats will help to pass the bill.

First, Alexander and Lee will have to get their bill through the Senate Committee on Rules and Administration. The committee was scheduled to tackle the bill last week, but canceled a hearing at the last minute. "I think the authors wanted more time," said Sen. Roger Wicker, a Republican member of the Rules Committee, who is among the undecided votes.

A Lee aide said that the committee will likely resume consideration of the bill in March, after the Senate has figured out a way to fund the Homeland Security Department.

Sen. Chuck Schumer, the ranking Democrat on the committee, has said that the bill is a "nonstarter" for most of his members. "I love Lamar, but when he first showed it to me, I said: 'How can we do this for Supreme Court?'" he said.

But Alexander and Lee argue that the rules change is hardly as monumental as Democrats, and some Republicans, are making it out to be. "All we're doing really is putting into rule the tradition that's been in the Senate with rare exceptions since Thomas Jefferson wrote the rules in 1789. The idea has always been that presidential nominees get an up or down majority vote," Alexander said last week.

That didn't really change until George W. Bush's presidency, Alexander said, when Senate Democrats filibustered Miguel Estrada's nomination to the D.C. Circuit Court over concerns that he was unqualified for the job. Since then, both parties have used the 60-vote threshold to block judicial nominees. That is, until Reid changed the rules in 2013.

The Alexander-Lee legislation would lend legitimacy to the rules change, with approval from two-thirds of the Senate. "We thought we would do two things: One is, let's establish the tradition that's existed since 1789 by rule. Let's do it the right way, which is to get 67 votes. Maybe if we get in the habit of doing things the right way, the next time somebody suggests doing things the wrong way, senators won't do that," Alexander said.

Even if Alexander and Lee manage to get the bill over the finish line in committee, it's unclear what will become of the bill in the full Senate. While Alexander has discussed the issue with Senate Majority Leader Mitch McConnell, he said he had not yet gotten a guarantee that the leader will bring his bill to the floor.

For now, the bill's sponsors are trying to take politics out of the equation, no easy feat in this Senate. "Everyone's trying to figure out what the right politics is, but the problem is, if you're basing your decision solely on politics, then you'll chase your tail forever. ... We could lose the Senate and we could absolutely win the presidency, so then what are the politics?" a Lee aide said. "That's why we've never made the political argument. "¦ The rules should be consistent with the precedent."

Sen. Jeff Sessions, an Alabama Republican who emphasized that he hasn't made up his mind about the bill, agreed with that line of reasoning. "You've got a majority now, you don't have a majority soon. You've got a Republican president, a Democratic president. They go back and forth. So we really should do the right thing for America and the Constitution over the long term," he said. "I think we should establish a policy that extends beyond the next election."

This article is from the archive of our partner National Journal.