POLITICS
07/14/2013 09:23 am ET Updated Jul 15, 2013

Senate GOP Vows Payback For Nuclear Option, Ignores Own Role In Filibuster Fight

WASHINGTON -- When Senate Majority Leader Harry Reid (D-Nev.) declared Thursday that he intended to push ahead with a "nuclear option" rules change in order to confirm a handful of President Barack Obama's stalled nominees, Republicans declared that he was destroying the world's greatest deliberative body -- and that he would pay for it.

Senate Minority Leader Mitch McConnell (R-Ky.) went so far as to declare that Reid would be remembered as the "worst leader of the Senate ever" if he changed procedural rules with just a 51-vote majority -- instead of the usual super-majority -- to help nominees evade threats of filibuster.

Democrats responded that Republicans had already destroyed the chamber by using blocking tactics to turn every nomination (and much legislation) into a drawn-out, time-consuming fight that eats time from the rest of the country's business and hamstrings the executive branch's ability to function.

The heated rhetoric requires some context. The Senate has changed its rules in mid-session before, and the reform Reid is talking about is relatively narrow, applying only to administrative nominees in the executive branch. But it's still a bombshell because it targets the core advice-and-consent duty of the Senate, and because use of the nuclear option has been threatened before, but the historically judicious body has not actually used it. Proponents dub the maneuver the constitutional option.

Most recently, the majority threatened to go nuclear in 2005, when Republicans were in control of the upper chamber. The arguments on Thursday sounded remarkably like those of eight years ago -- just reverse the parties -- when the minority Democrats mounted a concerted effort to stall some of President George W. Bush's more conservative judicial nominees.

But there are key differences. Republicans back then were forced to seek cloture on nominations -- that is, to end debate with 60 votes, usually because of a filibuster -- 18 times. Overall, there were 68 motions for cloture in the Senate legislative and appointment battles of that two-year session of Congress, the 109th. In frustration, Republicans very nearly crafted a nuclear-option rules change that Democrats at the time said would destroy the Senate.

The showdown was averted when a bipartisan "Gang of 14" senators declared they would unite to break filibusters unless there were "extraordinary" circumstances. That deal mostly held on nominations until the last Congress, the 112th, when procedural battles escalated over nearly everything. Cloture had to be sought on 33 nominations, almost twice as many as the 18 that so bothered the GOP in 2005. More broadly, ever since the Democrats regained control of the Senate in 2007, the incidence of cloture fights in which the minority party had to be overridden has spiked dramatically. While there were 68 cloture motions when the GOP-led Senate nearly went nuclear in the 109th Congress, there were 139 cloture motions after the Democrats took over with the 110th Congress.

Democrats reacted at the start of the 113th Congress, in January, by threatening rules changes that included reinstating the old-fashioned "Mr. Smith Goes to Washington" talking filibuster -- in which a lawmaker must hold forth on the floor, not just phone in an objection, to block action.

The Democrats settled for a more modest change, however, with Reid agreeing he would not try to change the rules again in this session, while McConnell pledged that Republicans would conduct themselves more in accord with the norms of the Senate.

The GOP has become somewhat more cooperative (there have been 22 cloture motions one quarter of the way through this session of Congress). But House Republicans have also engaged in some spectacular stalling, forcing a cloture vote for the first time ever on the nomination of a secretary of defense, for instance, and steadfastly refusing to ease the way for nominees to agencies they do not like, particularly the National Labor Relations Board and the Consumer Financial Protection Bureau.

Such entrenched positions are raising the temperature in the arcane rules battle.

Democrats see the labor board as vital, and Obama dealt with the blockade by going around the Senate, appointing NLRB nominees (and a CFPB director) during a technical recess of the Senate in 2011. Republicans were infuriated. An appeals court has since ruled the labor appointments unconstitutional, although the case is being appealed to the Supreme Court.

Because of expiring terms, the labor board is about to become nonfunctional. McConnell offered Thursday to solve the problem by putting two Republican nominees on the board, which Reid summarily rejected. The CFPB, which was not part of the court case, continues to operate.

Perhaps an even bigger concern for Democrats is finally filling vacancies on the influential U.S. Court of Appeals for the D.C. Circuit, often considered the second-highest court in the land and the court that ruled against Obama's NLRB appointments. Democrats have not yet included judges in the rules fight that is expected to play out Monday and Tuesday, but there are three open seats on the D.C. Circuit. Three nominees are working their way through the Senate process, and Republicans have signaled they will fight bitterly to prevent the empty seats from being filled, claiming the attempt to do so amounts to "packing" the court.

Democrats feel equally strongly that a president who has won reelection and the voters who chose him deserve to see his policy and judicial philosophy reflected in federal agencies and judges.

The only way Reid can find to make that happen is by forcing a concession from the GOP with the nuclear threat, or actually carrying out that threat.

The importance the GOP attaches to preserving a set of Senate rules that allow its senators to debilitate the NLRB and prevent a key court from tilting to the left can be gathered from senators' impassioned statements Thursday, after Reid announced he was ready to change the rules. Indeed, they pledged that Reid would "rue the day" and that eventually the "shoe would be on the other foot."

WATCH them above.

Reid and McConnell agreed to take a few days to cool off. The Senate will hold a full, private caucus Monday evening to air out differences. Reid said Thursday that he didn't expect much to come of it. The result will be clear on Tuesday, when the majority leader calls for cloture votes on several stalled nominees.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.

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