07/15/2013 07:40 pm ET Updated Dec 06, 2017

Reid's Nuclear Disarmament Meeting

An extraordinary meeting is taking place today, which all 100 senators have been invited to attend. This should really not be an extraordinary thing -- you'd think that all senators meeting together would just be an actual floor session in the Senate -- but it is because it is actually a political meeting, with the doors closed. The senators aren't meeting to pass legislation, they're meeting to have a political showdown of sorts (hence the closed doors). Normally, each party's caucus meets separately behind closed doors to hash out party strategy, but what's extraordinary about today's confab is that both parties are meeting at once.

The meeting is a last-ditch effort by Harry Reid and Mitch McConnell to avoid what some people call the "nuclear option" and others call the "constitutional option." This refers to what Harry Reid is threatening to do should Republicans keep up their almost-universal obstructionism by filibustering pretty much every vote the Senate takes these days. It's gotten so bad that the lazier members of the media often say things like "Well, as everyone knows it takes 60 votes to pass anything in the Senate," without any acknowledgement that (1) this is not true, it's supposed to take only a majority vote (as the Constitution specifies), and (2) this is a recent development, since the Senate has not always operated this way.

At the heart of the battle is the filibuster. The filibuster is a Senate "tradition" or a Senate "rule," and as such is and always has been subject to adjustment. The Constitution is silent on the filibuster -- it was not dreamed up by the founders as part of the American governmental system. That's a key point a lot of people aren't even aware of. The Constitution does dictate specific "supermajority" votes (where a larger majority is needed than half-plus-one), for several circumstances, so it's not like the founders didn't think about situations where more than just a simple majority should be required.

In fact, there are five places in the Constitution where supermajorities are required from the Senate. When sitting to try impeachments, the Senate has to vote to convict by a two-thirds vote (Article I, Section 3). A two-thirds vote is also necessary to expel a member of the Senate (Article I, Section 5), override a presidential veto (Article I, Section 7), ratify a treaty (Article II, Section 2), or propose a new constitutional amendment (Article V). New states are allowed to be admitted to the Union with only a simple majority vote in both houses, and the vice president is the one who breaks ties in the Senate -- showing that the Constitution does address other questions of Senate voting as well. But they specified exactly when more than a majority vote would be required. And nowhere -- nowhere -- does either the word "filibuster" appear or the concept that the Senate cannot pass laws or confirm presidential appointments (judicial or otherwise) with any more than just a majority vote. So any Republicans now screaming about what Harry Reid's threatening should be directed to those cute copies of the Constitution they all carry around in their pockets, and asked to point to where the filibuster appears.

The closest thing in the Constitution that anyone can point to comes from Article I, Section 5: "Each House may determine the Rules of its Proceedings." That's all it says about parliamentary rules for either chamber. They're allowed to set their own rules. Notice that there's nothing in that clause, either, about a supermajority being required to do so -- that, too, is just another one of the Senate's rules that can be changed by the Senate any time it feels like.

The real fight today, however, is over the following paragraph. Please note that the first part does indeed specify a two-thirds majority, but then the rest of the sentence does not -- which shows that it wasn't just some sort of oversight by the framers of the Constitution. If they had intended presidential appointments -- judges, even -- to require a supermajority, then they would have said so, as another part of the same sentence does for treaties. From Article II, Section 2, which enumerates the president's powers:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Earlier fights where the "nuclear option" was threatened were mostly over judicial nominees. These are the most important nominees a president makes, since all federal judges from the Supreme Court on down serve lifetime terms. Short of impeachment, once confirmed there is no way to get rid of them. That's a pretty powerful thing, when you think about it.

But the fight this time is over those other "Officers of the United States," not over judges. Harry Reid is not threatening to kill the minority's ability to filibuster either legislation or judicial appointments. Even his own caucus doesn't support ending the filibuster in either of those cases. All Reid is threatening is to end the filibustering of all non-judicial presidential appointments. That's another key point that often gets lost in the debate (especially the debate on mainstream television news). Even if Reid prevails, it will not be the end of the filibuster in the Senate as we know it. Far from it, in fact.

Reid has been driven to the point of threatening to change the Senate's rules because of the naked obstructionism exhibited by Republicans over nominees to federal boards and agencies that they don't particularly like. It is one thing to filibuster and fight against a nominee (for any job) that is seen as unqualified to do that job. It is quite another when Republicans baldly and publicly state that they're going to filibuster any nominee to a certain job, because they don't think the job should exist -- as they have done for the Consumer Financial Protection Bureau. The C.F.P.B. was the brainchild of Elizabeth Warren, and was passed into being by Congress and signed into law by President Obama. She was the natural choice to head the agency. Republicans refused to even consider her for the nomination, because the big Wall Street firms hated both her and the new agency. Obama recess-appointed her, and then she went on to win a Senate seat of her own. Her deputy was then proposed to head the agency, but even though Republicans don't really have a problem with Richard Cordray per se, they still announced that they would continue blocking his appointment -- because they are still annoyed that the agency was created in the first place.

Got that? They are not giving their "advice and consent" to the president's nominee not because they think he is unqualified in any way to do the job, but because they are still being sore losers over a vote on a bill which happened years ago. They have, so far, blocked anyone from getting Senate confirmation to head the new agency. This is nothing short of a political temper tantrum, folks. They didn't get their way, so they're holding their breath until they turn blue in the face -- that's all it is. And Cordray's appointment is only the worst case to point to -- there are other agencies that Republicans are fine with shutting down because they have no one confirmed to run them (such as the National Labor Relations Board), over purely ideological objection to what the agency is charged by law with doing.

This is why Harry Reid is threatening to change the rules. Because Republicans have gotten so blatant in their obstructionism. They're not making some principled point about a judge who will be there for life -- they are trying to hamstring federal agencies from being able to operate, just because they don't like the agencies' purpose. That is unprecedented, and is the reason Reid is so frustrated. The Constitution states that the president should be able to name his team in the executive branch. The Senate is supposed to confirm these choices, but originally this was only by majority vote. The traditions of the Senate are that these officers are confirmed as a regular matter of business. This has ground to a halt due to the abuse of the filibuster -- which is nothing more than a tradition in the Senate itself (and not even mentioned in the Constitution).

I write this not knowing the outcome of today's meeting. Perhaps Reid and McConnell and the other 98 members can hash out some sort of compromise which allows nominees to be confirmed as a normal matter of course, the way they used to be (before the last few years). Perhaps the Republicans will back down. Perhaps some sort of handshake agreement can be reached which allows for straight up-or-down votes on Richard Cordray and all the rest of those waiting their turn.

But if comity isn't achieved, then Harry Reid should make good on his threat. America is tired of seeing a broken Senate. They are tired of seeing nothing get done. The American people, in fact, would overwhelmingly prefer to have real filibusters return -- where senators are forced to defend their positions for hours on end. Everybody loves Mr. Smith Goes To Washington, to put this another way. But keep in mind that most of the problems won't even be fixed if Reid forces a rule change on non-judicial presidential appointments. We're not talking about killing filibusters for legislation or even for judicial appointments. The "nuclear" option currently under discussion isn't really all that radioactive, in fact. And if Democrats and Republicans can't strike a deal tonight -- if "nuclear disarmament" can't be reached, to extend the metaphor -- then Harry Reid should be fully prepared to follow through and change the rules for the Senate using whatever tools are available to him.


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