by Kagro X
Like a bad horror movie, the nuclear option keeps coming back.
Here's the set-up, courtesy of Hunter at Daily Kos:
Senate Republicans prepared a targeted version of the so-called “nuclear option” yesterday as they tried to ensure adoption of a defense-spending conference report that includes a controversial provision opening the Arctic National Wildlife Refuge (ANWR) to oil and gas drilling.
The tactic promises to make the consensus-based Senate temporarily resemble the majority-dominated House.
Let's take that apart, shall we?
What's happening, exactly?
What's happening, exactly?
The ANWR provision leaves the measure open to a point of order because it runs afoul of Senate Rule 28, which requires that conference reports contain only provisions that were included in either the House- or Senate-passed versions of the bill.
The president of the Senate, who rules on parliamentary questions, would be expected to uphold the point of order. But Republican leaders plan to appeal that ruling, allowing 51 senators — rather than the 60-vote majority typically needed to waive points of order — to allow the ANWR provision to stand.
Sen. Ted Stevens (R-Alaska), the chairman of the Defense Appropriations Subcommittee and the chief proponent of ANWR drilling, included a provision to ensure that the precedent set by the move would not become permanent. Under that language, the Senate would revert the precedent that existed at the start of the 109th Congress.
It is possible that Stevens, who is president pro tempore of the Senate, could preside over the proceedings on a point of order, according to Amy Call, spokeswoman for Senate Majority Leader Bill Frist.
Though it would be short-lived, the parliamentary maneuver is similar to the “nuclear option” Frist has threatened to employ to circumvent Rule 22, which requires a supermajority for cloture, to win confirmation for judicial nominees.
To boil it down, the ANWR drilling provision was tacked onto the Defense bill in the hopes that Democrats would be afraid to oppose the underlying legislation, for fear of being labelled "weak on defense." But because it's an add-on that wasn't passed by either the House or the Senate, it's against Senate rules.
Stevens proposes to use the nuclear option to do away with that rule... but only temporarily, and then change the rules back once he gets what he wants! I don't know what they say about that up in Alaska, but where I come from, we say, "What a dick!"
How will the GOP change the rules? Well, the ANWR provision is subject to a "point of order," which if raised and properly decided, would strike the language from the bill. But the Republican plan, if the article has it right, is to appeal the ruling of the chair, effectively subjecting the correct decision as guided by the Senate Parliamentarian to a majority vote, wherewith 51 Republicans could simply reject what the actual rules of the Senate say, and instead replace it with a reading that's the exact opposite. Then, thanks to Stevens' dirty trick, they'd "undo" the whole thing and pretend it never happend.
As Harry Reid warned on the floor earlier today, and I warned back in March, these sorts of shenanigans are what's supposed to separate the House from the Senate. The House is run on strict majoritarianism, and the Senate protects the rights of the minority. That both theories of the legislative process are represented in Congress
is was supposed to be part of the genius of bicameralism.
But screw that! There's oil up there! Plus, nobody watches C-SPAN2, and even if they do, what's so evil about undoing the intention of the founders with respect to bicameralism when down the street, they're just shredding the Constitution wholesale?
Anyway, it should be pretty obvious to anyone who is watching that this is a complete reversal (a/k/a "flip-flop") on Republican assurances that the use of the nuclear option would be strictly limited to judicial nominations. Scattered around the Internets, you'll find my responses to questioners who wondered whether or not the nuclear option was applicable to legislative filibusters as well, wherein I told them that there was, in fact, nothing that would prevent its use there. Now we see how correct that was, and how quickly the Republicans have resorted to it.
And of course, this maneuver lacks even the thin veneer of the "advice and consent" clause that Republicans used to repackage the nuclear option as the "constitutional" option. You'll recall that at the time, Republicans claimed that since the Senate had a "duty" to express its advice and consent to judicial nominees, it was their position that each nomination required an "upperdownvote," as Dr. Frist likes to say.
That meme, of course, died an ignominous death with the Miers nomination. But at the time, it was the mantle they wrapped their "constitutional option" in, in order to make it seem like they'd read the document.
To be fair, the GOP later claimed that it was "constitutional" thanks to the Article I provision giving each house the right to make its own rules, but the same objection stands here as it did last time: the Senate has made its rules, and one of them is that the rules can't be changed except by a 2/3 vote.
Today, as back then, the plan is just to declare that rule null and void, but apparently only for as long as it takes to get their way.
Still later, Senator Kyl attempted to justify the nuclear option by saying that the ruling involved would not pass on the constitutionality of the judicial filibuster, but rather declare them contrary to the traditions of the Senate. That, too, is a debatable point, but notice that the argument could not possibly have application here. Legislative filibusters are very much a part of the tradition of the Senate. So there's another nuclear option justification down.
Not that it matters to this crew.
Let's turn now to the "Gang of 14." Remember them? They were the ones who agreed to this little number:
Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.
Wow, that's some narrow wiggle room for the GOP Seven. They committed to opposing rules changes in the 109th Congress, which they understood to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.
Now, "in light of the spirit and continuing commitments made," Senators, how would you feel about rules changes in the 109th Congress that rely on interpretations of the Rules of the Senate that would force a vote on legislation by means other than unanimous consent or Rule XXII? How about such rules changes that would subsequently erase themselves from the precedents once their purpose was accomplished?
Are all bets off so long as the underlying issue isn't a judicial nomination? How would that bode for, say, the Alito nomination? Or, say, for everything else the Senate ever does, now and forever, from this day forth, amen?
Think it over, Senators.