Notes on the Nuclear Option -- Part XIX

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?

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.

WTF?

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.

Calvinball.

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.

Comments

[DemFromCT]

Stevens fails

The Senate blocked oil drilling in an Alaska wildlife refuge Wednesday, rejecting a must-pass defense spending bill where supporters positioned the quarter-century-old environmental issue to garner broader support.

Drilling backers fell four votes short of getting the required 60 votes to avoid a threatened filibuster of the defense measure over the oil drilling issue. Senate leaders were expected to withdraw the legislation so it could be reworked without the refuge language. The vote was 56-44.

Senate Majority Leader Bill Frist was among those who for procedural reasons cast a ''no'' vote, so that he could bring the drilling issue up for another vote.

The vote was a stinging defeat for Sen. Ted Stevens, R-Alaska, who for years has waged an intense fight to open the Arctic National Wildlife Refuge. He thought this time he would finally get his wish.

but no procedural details...

[Kagro X]

The first vote failed. They're in reconsideration now, with a quorum call pending.

I forgot to add the most interesting procedural detail, by the way. I'll update later, but have to run now.

Basically, it's this. If the chair rules to uphold the point of order and the Republicans appeal, the appeal is debatable, and therefore subject to filibuster.

Duh!

That's why the original nuclear option plan had the chair overruling the parliamentarian and forcing the Democrats to appeal.

[viget]

Kagro--

Two points (er questions)..

1) If Cheney's in the chair, who's to say that he would uphold a Rule XXVIII point of order? If he denies the point of order against the parlimentarian's advice, doesn't that just leave us back at Dems appealing with a majority vote (like the original nuclear option)?

2) Given these guys' penchant for my-way-or-the-highway tactics, do you think it possible that Frist would raise a point of order on another filibuster attempt of the Defense appropriations bill by claiming it's unconstitutional during a time of war because it violates the separation of powers doctrine by not allowing the President to exercise his C-in-C mandate?

A specious argument, to be sure, but if they're willing to argue that judicial filibusters are unconstitutional, why not argue that legislative action refusing to appropriate funds for wartime activities is also unconstitutional. It goes along with Cheney's, Addington's and Yoo's vision of unlimited executive power.

In any case, as I understood my previous discussions with you, the Presiding Officer (assuming it's Cheney) can rule any way he damn pleases on points of order, so he can always deny Democratic points-of-order and sustain Republican ones.

Or is it that Appeals of the Chair can only be requested when he sustains a point of order ?

[Kagro X]

Viget, the article I linked to said that it was expected that whoever was in the chair would uphold the point of order, putting them in the reverse position, for whatever reason.

I think that's either a misunderstanding on someone's part -- either the paper's or the GOP's -- but I can't be certain. They may have some crazy reason for doing things this way, though I'm not sure what it might be.

Either way, it's not gonna look good in the wake of the eavesdropping scandal to do yet more blatant rule breaking and power grabbing.

[emptypockets]

A little confused again: voting for the (temporary) rule change is essentially voting for Alaskan oil drilling, right? And they need 50 votes to do the rule change? So by the distributive property (I can't commutative 'cuz the transitives are on strike) they'd have 50 votes for Alaska drilling, then? ...then why not bring up the Alaska drilling on its own for a vote, instead of attaching it to defense? Are there some senators they thought would be willing to vote for this wacky rules change who are NOT willing to vote for drilling per se??

(and yes I realize this may be moot at this point -- I'm not sure I followed what happened today anyway -- but humor me, if you would, and respond as you might have this morning.)

[jonnybutter]

I don't think the Rs have the votes/juice to pass ANWR on its own. They didn't earlier in the year, so they surely don't now.

[greyhair]

I think the Dems should push the filibuster to the limit. Hopefully, they'll get rid of it:

http://greyhairsblog.blogspot.com/2005/11/filibuster-fake_01.html

The filibuster is anti-progressive and is good politics for the Democrats. Yes, Dems may have some short term pain. But in the long run, the filibuster has never been a friend of the Democrats. So if it's taken away by Rethugs, they win. If it's used to stop Rethugs, they win. And if the Rethugs try to game it, call a "closed session".

[Kagro X]

e-pockets, nothing has happened yet. The Senate has been in a "quorum call" since around noon or so, while they figure out what to do.

I think the situation is that they thing they can get to some combination of 50 votes between those in favor of ANWR drilling and those Republicans who won't buck the leadership on a procedural vote. The theory must be that they don't have 50 votes for ANWR, or perhaps they don't have 50 votes who would otherwise support this sort of shoehorning.

Greyhair, I've heard that argument made before, and I reject it because its premise is inapplicable. Most of the people I've heard make it start from the premise that it's to the advantage of progressives because conservatives being by nature conservative (meaning that it is their natural preference to legislate minimally), it is mostly progressive bills that will suffer from the use of the filibuster.

But that premise is no longer valid, as we've come quite painfully to find out. Today's "conservatives" are anything but, and are more than happy to legislate an anti-progressive agenda, not merely sit by and say no to one.

[John Lopresti]

As recently as ten days ago Frist was saying he disavows the supermajority rule in Senate cloture, as reported in Washington Post. These guys have a fever on steroids. If, as some on the Next Hurrah site are suggesting, WaPo is going to be more reliable than the New York Times, WaPo has a long way to go to obtain my trust, given the obsequious kind of reporting echoing Frist's distain in this cited article.
I have a new concept about Alaska National Wildlife Refuge oil development with respect to its hastening extinction of polar bears. Oil exploration disturbs lands and scares females trying to establish a bear den in which to have their young in the brief arctic summer until cubs and mother are ready to swim out to the ice floe where they find food the remaining eight months of the year. Global warming has diminished the ice floe nearness to land so the swim is getting too long for the bears; the latest biology predicts extinction by starvation of mother and cubs by 2065; my new concept is biowork: the genetic development of a specialized species takes millenia; then global warming within one hundred years pushes polar bears to extinction. Maybe it should be called genetic work.
Besides Ted Stevens, I would expect Lisa Murkowski to want to guarantee her re-electability by supporting oil development in ANWR. It will surprise me if the Republicans in the Senate let ANWR oil exploration happen, given the very recent numerous setbacks of which the Republican party has borne the brunt. I think the paleoRepublicans have mistakenly underestimated the importance of environment to modern Republicans; as matters have been evolving, Republicans have a significant disadvantage on numerous issues entering off-year primary season soon in a few months.

I have vivid recollections of Southern Dixiecrats filibustering civil rights; so it is a peculiar construct. It is a kind of organic form of parliamentarianism, a way of acknowledging maybe the minority is wrong but it is still part of the congress. Sometimes I think DeLay's form of over the edge polity is on the way out; then we recall Rosty. How long is it until the next election, please.

[emptypockets]

some combination of 50 votes between those in favor of ANWR drilling and those Republicans who won't buck the leadership on a procedural vote

That's just astounding. A set of senators who are not even in favor of ANWR drilling yet are willing to dispense with the entire history of Senate procedure in order to pass it.

Shame on them. But I agree with you, one has to suppose they exist or this maneuver would make no sense.

[RonK, Seattle]

If Frist (Stevens) goes for it, I suspect he loses the Gang of 14 (our Nelson, Inouye and Landrieu, their Collins, Snowe, Warner McCain and Graham) from the cloture count. Possibly others on this extreme combo.

That puts him below 50, but above 40. In position to filibuster the debate on the ruling of the chair.

But filibuster doesn't get any of this passed or anybody home for Xmas.

[greyhair]

Kagro, I don't work *quite* from that premise, but rather from a different premise.

I believe the conservatives are wrong. Yes, wrong. Therefore, I believe the time frame we're living through is a blip rather than a trend. The polling sure seems to suggest that Americans are on the progressives side when it comes to the issues. And I do believe, although off to a late start, the progressives/liberals/democrats are on the way to restoring their position as the majority party. And when that happens, the filibuster is a pain and obstacle to the majority will.

And what if I'm wrong? Then the filibuster will, at best, only be a temporary obstacle to the majority position (and in fact, that has been the case throughout history).

[greyhair]

Can't edit posts, so I thought I'd just add this...a little bit of support for my premise (via Atrios):

http://www.michaelberube.com/index.php/weblog/they_hate_our_freedoms/

[RonK, Seattle]

Having had yesterday's game plan come apart on a filibuster sustained, I expect Frist and a few others go home thinking more and more about the Nuclear Option.

This ain't over.

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