The Failsafe Option

by RonK, Seattle

When handling devices of unconventional destructive power, it is wise to design them to discourage unintentional activation ... and likewise to raise barriers to intentional activation by unsound or unauthorized operators.

Fortunately the Frist-Cheney device is equipped with just such a mechanism. When Frist pushes the red button, a handful of GOP moderates can suspend the countdown indefinitely -- without surrendering their ability to activate or defuse the device later.

This gives a (possibly shifting) moderate/institutionalist faction a great deal of power over the pace and eventual outcome of Frist's intended chain reaction.

Frist starts the process by asserting that debate on the Owen confirmation has become dilatory and constitutionally impermissible.

Cheney (presiding) rules in Frist's favor.

Reid raises a point of order that this is a constitutional question, and is therefore debatable (and subject to filibuster).

Cheney rules against Reid's point of order.

Reid appeals the ruling of the chair.

Frist makes a non-debatable motion to table Reid's appeal.

In the "main sequence" Nuclear Option scenario, Republicans then either muster 50 votes to table Reid's appeal (proceeding to the confirmation vote), or Reid musters 51 votes (defeating the motion to table the appeal), and prevailing on the appeal with the same 51 votes (preserving the filibuster and the tradition of rulefulness in Senate proceedings). But at this juncture, there is an alternative.

With the aid of six GOP "prudent defectors", Reid can win his appeal of the ruling of the Chair (as above). Debate on the underlying constitutional question ensues.

Reid can forestall the vote on this question indefinitely, by filibuster, but he can't defeat it or make it go away -- except with support of six Republicans.

If one or more of the Six withholds this support, the Senate remains in a true "Mr. Smith" filibuster, with neither side disposed to yield. Now the Six  (probably, but not necessarily, the exact same six as time goes on) are more-or-less in the driver's seat. They can:

• Buy time ... maintaining this stasis as long as they choose,  leaning on both sides, bargaining for a non-catastrophic settlement and letting the coffee cool in the saucer.
• They can defeat Frist-Cheney at any time, by voting with Reid and the Democrats on the appeal.
• They can allow Frist-Cheney to prevail at any time, by accepting a similar ruling and tabling the resulting appeal (with all the attendant lawless dirty nuclear fallout).
• They can put pressure on Reid, by announcing their support for cloture votes on the constitutional question. Reid's 45 votes may still maintain the filibuster, but with increasing difficulty as time drags on and counteroffers are negotiated.

The thornier question is whether they can neatly put the constitutional question back in Pandora's Box without deciding it and setting precedent ... but by the time it comes to that, Kagro X should be back with running commentary and analysis.

Comments

[x]

Reid will kick their ass. This is a totalitarian power grab. It will not stand. Frist is out of his depth, & W is a premature lame duck, thanks to his overreach on SS. The 49% of voters are being joined by some of the 51%, if indeed there are that many, lining up on Reid's side. Reid is looking like a Master Jedi. I hope I'm right on this, & Reid punches Frist in the metaphorical nose, & W gets it right between the eyes.

You cannot govern based on the 30% of the governed who insist the Earth is flat & the center of the universe.

Just can't happen. (I hope)

[Petey]

Interesting.

[DemFromCT]

Specter (Ol' Scottish Law) might like it.

[DHinMI]

Man, that's got the potential for some real tyranny of the minority...

[emptywheel]

If it happens, let's all hope Byrd is among the group in question. He's the only potential compromiser I can think of who will give us an amusing filibuster. It's probably the only thing he hasn't done in the Senate, the only thing he has to add to his legacy: to out-filibuster Strom.

[RonK, Seattle]

A subplot is the grown-ups' growing impatience with the insufferable brats. Picture a gaggle of greenhorns who just got off the bus from "the other body", popping off in GOP caucus about Constitution this and Federalist that ... with no idea of the institutional stakes and barely a clue to Senate culture.

That's gotta wear thin after a while. A few grown-ups have the ability to play for time, if they're willing, while the ill-advised nature of the whole adventure sinks in with their less-prepared peers.

Meanwhile, committees do not meet while the Senate is in session, and Byrd conducts his history tutorials for the general edification of us all.

[DemFromCT]

Re RonK:

The NY Times magazine today (or tomorrow) has a cover story on the impatience of Rick Santorum.

When Byrd saw Santorum carrying a sign that said 'Where's Bill' (re budget negotiations with Clinton) on the Senate floor, Byrd "commented that the young senator's style seemed more appropriate for 'an alehouse or a beer tavern'".

Another quote from an unnamed Dem Senator:

"I'm shocked to see him in leadership, because of his comportment and general disdain for everybody else. There have to be moments of compromise, but with him, it's his way or no way. He really is doctranaire and sanctimonious."

Trouble is, those are Dem quotes. Can't find any unnamed R's who will say so.

[Kagro X]

If you ever watch the Senate during a roll call vote, you'll see Senators congregate in small klatches.

Watch for a few minutes, if you haven't anything better to do. Nothing breaks up a congenial chat faster than the arrival of Rick Santorum.

I'd have to guess that they put him in leadership to shut him up and stop his constant whining, and just figured they'd ignore him in meetings.

[Petey]

Assuming Casey doesn't end up in Specter's seat, Li'l Ricky is soooo dead next year.

[muledriver]

If Frist drops the nuclear bomb, it will trigger the doomsday machine (strict compliance with Senate Rules) created by Reid.

Muffley:

I'm afraid I don't understand something, Alexiy. Is the Premier threatening to explode this if our planes carry out their attack?

DeSadeski:

No sir. It is not a thing a sane man would do. The doomsday machine is designed to to trigger itself automatically.

Muffley:

But surely you can disarm it somehow.

DeSadeski:

No. It is designed to explode if any attempt is ever made to untrigger it.

Muffley:

Automatically?

Turgidson:

Ahh.. it's an obvious commie trick, Mr. President. We're wasting valuable time. They're getting ready to clobber us!

Muffley:

But this is absolute madness, ambassador. Why should you build such a thing?

DeSadeski:

There are those of us who fought against it, but in the end we could not keep up with the expense involved in the arms race,.....But the deciding factor was when we learned that your country was working along similar lines, and we were afraid of a doomsday gap.

Muffley:

This is preposterous. I've never approved of anything like that.

DeSadeski:

Our source was the New York Times.

http://www.visual-memory.co.uk/amk/doc/0055.html

[Fred in Vermont]

The moderates could do a "Prelude to Failsafe" gambit on Tuesday.

Suppose we have 6 or more Republican say that they view the cloture vote on Owens as really a vote on cloture for the Nuclear Option because that is what the Majority Leader intends to do next and by its nature there will be no opportunity to debate the motion to table that pulls the trigger. They say that they don't think that there has been enough public discussion of the ramifications of this and the sorts of precedents the particular way it is done can be expected to have going forward and what the Republicans plan to do in a work-rule-senate. They also say that they have not been able to finalize negotiations on a compromise (already agreed to in principle) with a group of Democrats because of the unwillingness of Leader Frist to take the whip count of a free vote among by Republicans on all the blocked nominees that Senator Specter asked for on Friday. Therefore, in order to buy more time to negotiate, and to signal their seriousness about wanting to avoid the Nuclear Option, they intend to vote against cloture on Owens and perhaps, it come to it and they still think there is a way to reach an agreement, against a motion to table.

If cloture not only fails because of the votes of the Democrats but also fails to even get a majority because of the such protest votes by the moderates that would be the sort of shot across the bow that might make Frist realize that he can't be sure he will win his motion to table because the moderates would have already explained why they might vote against that. And of course if that happens we are in the Failsafe situation discussed above.

A variation on this Prelude to Failsafe option would be for 6 Democrats who have been working with the 6 Republicans to announce that in a show of good faith they are trading votes with the 6 Republicans and, since under these conditions it will not change the result on cloture, they will vote for it. The idea here is to make it clear that both sides are willing to cooperate on this, even though they have not had time to reach a final compromise. This would give the Republicans a certain amount of cover and also convince Democrats that this new block in the Senate is serious.

[RonK, Seattle]

Fred -- Correct. A handful of Republicans have the power to stop or slow the flow of time. There are certainly more than a handful who are less than eager participate in Nuclear Exchange.

We can expect a series of signals, by vote or by speech. Your proposed vote swap sounds like a promising variation.

Several unknowns:
Is any 6+6 deal feasible? (I'm skeptical.)
How far will dissident R's go in defying party discipline?
How far will leadership to enforce party discipline?
How much patience will the grown-ups have with the brats?
How much patience will the caucus have with Frist?
Can dissident R's reverse the flow of time, once procedure passes the trigger point?
Who will experience a conversion on the road to Armageddon.
Will lightning strike?

[Fred in Vermont]

>Is any 6+6 deal feasible? (I'm skeptical.)

McCain was saying today that there are more than 12 but that there was still not a final agreement.

>How far will dissident R's go
in defying party discipline?

They will go as far as agreeing to a compromise on these nomination and saying that they will trust the moderate Democrats not to be "unreasonable" on future filibusters in exchange for a similarly qualified promise not to go nuclear, but since almost by definition 'compromise' has to mean that some nominees will not be confirmed, the problem is how to chose. The moderate Republicans are unwilling to make that choice themselves. That would be more than defying discipline, it would almost be a coup. They seem to be waiting to hear from the Republican Caucus who it is willing to vote off the island and Frist will not permit that sort of a whip count.

>Can dissident R's reverse the flow of time,
once procedure passes the trigger point?

They can not. And they will not even be able to describe their compromise on the floor after the evil emperor and his minions launch the doomsday machine. So that suggests that the "trigger point" that Frist has announced is really the Tuesday cloture vote. That is the appeal of making a dramatic point in the cloture vote and the debate leading up to it. Both the Democrat and the Republican compromisers could even say that if they can get the time and support needed for a compromise on all the nominations then they would be ready to vote the other way on this and some other cloture votes, but not yet. At that point, without even majority support in the cloture vote, Frist would show himself to be a fool or a riverboat gambler if he went forward with his nuclear option.

>Who will experience a conversion
on the road to Armageddon?

Was that in the old testament or the new? Being from a blue state I am not up on end times stuff. ;-)

[The Heretik]

Impressive post and comments. Back in the early going when I posted to Armageddon on the Potomac, I found it somewhat absurd that fencesitters like the six undecided Republicans could decide this. Now I agree with DHinMI on six "compromisers" holding power.

When you look at what the Republicans have done in the past and what they are doing now, you see no principle rules. Only the desire for power. All to similar to the Supreme Court decision in 2000 Florida election vote recount. Would make a cynic out of Mother Theresa.

The politics of this mess are riven with BS around a sinew of manure.