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View Diary: Understanding the Republican "Nuclear Option" (185 comments)

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  •  the point (none)
    But the nuclear option was when they tabled the point of order using the simple majority.  The majority used that new negotiating strength to work out a compromise- but its a compromise they weren't able to reach before they used the nuclear option.  

    It would be the same as the republicans having Cheney sustain the nuclear option using a simple majority- then offering the dems the option to lower the cloture requirement to 55 for judicial nominations with the knowledge that if they didn't agree only a bare majority would be necessary.  No way in hell could the repubs reduce the number to 55 without the nuclear option, but after they had taken the step to table the point of order using the bare majority more dems might be willing to compromise knowing the alternative would be worse.  

    •  And? (none)
      Hurt doesn't tell you even that much.

      Nor does it explain the votes to vitiate the precedent.

      I'd also say it's not accurate to say that the nuclear option was when they tabled the point of order. The nuclear option was when Rockefeller ignored the objections being made by Senator Allen and refused to recognize him under the rules for his demand of a division of the question.

      It's hardball, but not a violation of the rules, to sustain a point of order by majority vote. But it's nuclear to set up the vote on sustaining or tabling a point of order by violating the rules of recognition, or making rulings which the chair is not authorized to make.

      That's what happened in 1975, and it's what's happening now.

      •  vitiating the precedent (none)
        This is where I don't agree with you.  The precedent was set- you can't go back and unring a bell.  No matter what the republicans try and do after the nuclear option to undo the precedent would be worthless.   The nuclear option is simply just making a ruling from the bench and having a bare majority sustaining it which is exactly what happened in 1975.  
        •  Not so. (none)
          The nuclear part of the nuclear option is the improper ruling from the chair.

          And if the precedents of the Senate can be changed by sustaining the ruling of the chair by majority vote, how is it that they can't be changed by overruling the chair by majority vote?

          If you don't recognize the power of the majority to vitiate the precedent, then you can't with logical consistency recognize the power of the majority to execute the nuclear option. It's just not possible. Either the majority can set precedent or it can't.

          •  the nuclear option (none)
            Here is now I understand the nuclear option.  You tell me what I am missing.  

            I think what will happen is that frist will make a point of order ruling that the cloture rule of 60 does not apply to judicial nominations and Cheney will agree with him.  The point of order will be put up to a vote and Reid will say that the motion is debatable and is therefore also subject to the filibuster.  THe parlimentarian would agree with Reid.   Frist would then put forward a non-debatable  motion to table.  They would vote on whether to table Reid's motion and that right there is the nuclear option because it would only take a bare majority.   The majority party would then be past any filibuster and Reid would have no recourse.  THey can go through with the initial vote or do whatever they want, but at that point the minority party is completely powerless.  THis is exactly what happened in 1975.  And even if the republicans just used this new negotiating power to change the rules using a 66 vote majority, it doesn't change the fact that Reid was silenced using a bare majority.  THe precedent that was set was being able to stop debate using a bare majority and move on to the vote at hand.  

            I beleive that the majority can set precedent. I don't beleive that the majority can set a precedent then go back and try and act as if it never happened.

            •  What you're missing. (none)
              Right in the first sentence of your explanation is the essence of what makes this maneuver nuclear. Cheney has no authority to rule directly on the point of order Frist will make. It's a question of constitutional interpretation, and is by definition debatable. Cheney's direct ruling is itself a violation of Senate precedent.

              What happened in 1975, before the precedents were vitiated, was that a "self-executing" motion was made by Senator Pearson to 1) proceed immediately and non-debatably to a vote on a rules change, and; 2) that the rules change could be adopted by majority vote.

              Note here: The 1975 motion posited that an actual rules change could be made by majority vote. Not setting a precedent by sustaining a point of order, but an actual change to the text of the rules.

              Now, what ensued in 1975 was an objection to the nature of the self-executing motion. Senator Mansfield made a point of order that the motion was improper and in violation of the rules. A motion was made to table Mansfield's point of order, but there was considerable controversy over what that would mean. Some said that tabling Mansfield's point of order would mean that the Senate was endorsing both the self-executing form of the motion and the incorporated mechanism of majority-only rules changes. Others said it merely expressed the Senate's willingness to directly debate the propriety of the Pearson motion, and that the question was divisible and a motion to table Mansfield's point of order was not and endorsement of the propriety of Pearson's motion.

              The Vice President, unadvised by the Parliamentarian, decided that tabling Mansfield's point of order would endorse Pearson's motion. This was what caused the problem. The Senate couldn't come to an agreement about what tabling Mansfield's point of order meant, and though they voted to table it three times, the confusion caused them to twice vote to adjourn rather than move on to consideration of the underlying motion to end debate and change the rules.

              The third time they reconvened, they agreed that things had gotten too far out of hand, and that they were better off working out a compromise (as is happening today). But a compromise, they decided, would not be enough. Whatever precedent may or may not have been established by the tabling of the Mansfield points of order had to be vitiated, or the deal could not go through. The Senate agreed, moved to reconsider the motion to table (as provided for in the rules), and reversed itself as a prelude to adopting the compromise proposed by Byrd.

              So next, you're going to have to explain to me how it's possible to believe that a majority can set precedent, but not change it.

              Setting precedent, by definition, requires a departure from the practice of the past, often a departure that is in direct contradiction to prior procedure. It's simply not possible to believe that a majority has the power to set precedent, but hasn't got the power to decide later to set it differently.

              It's also not a little bit ridiculous to say that the Constitution permits a majority to set its own rules, and then say that that doesn't count if the majority decides to make rules to get rid of old rules.

              Either they have that power or they don't.

              The whole of the nuclear option rests on the belief that the majority can do what it wants if it has the votes. No limits. Even to the extent of  "act[ing] as if it never happened." After all, Frist is going to act as if it's January, when we all know it's not.

              •  To me (none)
                Either the majority has the ability to table the point of order from the minority party using a bare majority or it does not.  In 1975 this was done.  Of course this caused controversy but by tabling the motion from the minority party it certainly changed the minds of some people in the senate (the 60 person cloture rule was passed where before it would not pass).  

                The precedent is about whether Reid can have a point of order be tabled using the bare majority.  It was done in 1975- and any attempts to go back and unring that bell are pretty irrelvant to me.  If tabling Mansfield using a bare majority was allowable (and as you say it happened 3 times) then the republicans are allowed to do it now to Reid.  The fact that in 1975 they simply used their stronger negotiating power to put in a favorable compromise instead of just instituting the rules they wanted is completely irrelevant.  There was nothing to stop the majority from doing it the first time- there is nothing to stop them from doing it again.  The republicans have all the options available today that the democrats had in 1975.

                To me the real issue is that there is no higher power to appeal to.  In 1975 the minority was put in a position where they had to agree to lower the cloture requirement or risk having it eliminated completely.  Maybe you think it was just a bluff- but who would have stopped in to rememdy the situation even if you are right that it was completely unprecedented?  

                •  You're missing the point. (none)
                  Nobody disputes the ability of a majority to table a motion or table a point of order.

                  The dispute is over what such a tabling means. That ws the issue in 1975, and it would be the issue today if not for the fact that Cheney will also be making a constitutional proclamation from the chair which will stand in the way of any opportunity to figure out what tabling means.

                  I also have to continue to say that the "bell ringing" metaphor is ridiculous. The point of the controversy over what tabling means is that the bell never got rung. The Senate merely, for a matter of hours, temporarily endorsed the idea that the bell could, in theory, be rung. Then, before ringing it, it thought better of it and changed its mind. The bell doesn't have to be "unrung" -- it's never been rung. To this day, nobody really knows what tabling the Mansfield amendment means. In that sense, 1975 is inapposite.

                  Who would have stepped in to remedy the situation? Byrd did, and part of the compromise was that the theory under which the bell could be rung be vitiated, and it was.

                  •  I don't agree (none)
                    The question is whether the party in power has the ability to stop debate on an issue using a bare majority.  Mondale did just that while he was presiding over the Senate in 1975.  The "compromise" that Byrd put in place was one that was not a possibility before the nuclear option was invoked.  The minoroty was faced with the decision on whether to give up and accept what Byrd was offering or risk having the filibuster eliminated completely at which point they capitulated.  Maybe the republicans also just table Reid's motion then go back to the negotiating table- but at that point in 1975 there was nothing at all stopping the majority from passing whatever rule they wanted to.  That they chose to use their new negotiating power instead of eliminating the filibuster completely is irrelevant.  
                    •  And that question has never been settled. (none)
                      Even in 1975, they never settled the question of whether the tabling meant a majority could stop debate or whether it meant that the Senate could proceed to a debate over Pearson's plan to allow the Senate to stop debate with a majority vote.

                      Mondale, by the way, wasn't presiding. Rockefeller was.

                      And the fact that the majority chose to use their new negotiating power instead of eliminating the filibuster completely is the furthest possible thing from irrelevant. It's directly relevant, in that with, as you argue, nothing stopping them, they chose instead to step back and NOT establish a precedent for a majority to stop debate. Instead, they agreed to a deal that left precedent leaning toward the view that tabling Mansfield's point of order would lead to a debate on Pearson's  motion, rather than the propriety of considering it.

                      Regardless of what they could have done, the only precedent is what they DID do.

                      •  OK then (none)
                        I guess this is the part I am missing.  To me the critical part of this is what would stopped the majority from going on to vote for the issue that was being debated?  What choice did the minority have but to accept whatever Byrd was offering?
                        •  The fact that they realized what they were doing. (none)
                          ...and pulled back, because it was overkill, and had potentially disastrous consequences if left in place.

                          Don't ask yourself what choice the minority had. Ask yourself why the majority chose to compromise.

                          By the way, it's worth considering in all of this that the 1975 situation was not divided along partisan lines. The Senate was in Democratic hands, and the presiding officer, Rockefeller, was a Republican. So was Pearson. That debate was genuinely about the institution, and not nearly as much about partisanship.

                          •  well (none)
                            I have tried to be careful about saying majority and minority because I do realize that it wasn't strictly along party lines.  And I am not asking about what is right- I am just talking about what is allowed and more specifically what the majority is prevented from doing.  Personally I think that 50 is too low a number for a supreme court justice but that has nothing at all to do with what the republicans can be prevented from implementing.

                            I think that the majority chose to "compromise" because they got what they wanted.  Before they pulled this they weren't able to lower the cloture requirements at all- after this they were able to reduce it to a number they thought was managable.  It would be the same as the republicans cutting off debate with the Cheney casting the deciding vote then just "compromising" and lowering the cloture requirement for judicial nominees from 60 to 55 instead of getting rid of it all together.  In the face of the possibility that 50 republicans could appoint a supreme court justice I think that many democrats might be willing to accept a situation where they just needed to convince one republican to defect.  The republicans woudl get what they want because all of their nominees would get up or down votes- but to me the precedent woudl still be set for the future when Democrats wanted to lower it again.  

                          •  I'm unsure then. (none)
                            Why the focus on 1975? The principle that a point of order or the ruling of the chair can be upheld or overturned by a majority vote is demonstrable throughout the history of the Senate, and has never been disputed. Why the focus on 1975 to prove that?
                          •  because (none)
                            Because this is the time it was used to reduce the cloture requirement.  The minority group understood that once the debate was stopped using the bare majority that there was nothing they could do but accept whatever compromise was offered.  They had no cards left to play and they had lost.  To me it wouldn't matter if the GOP offered a compromise after having Cheney stop the debate with a bare majority- the nuclear option woudl already have been invoked and the democrats would then have to decide between 50 repubs being enough to confirm a supreme court and whatever compromise the republicans chose to offer.  I guess I still don't see how you can possibly see that what happened in 1975 would be suitable for democrats in this situation.
                          •  Not sure what suitable means. (none)
                            But as I've stated before, I just don't read 1975 as an endorsement of the propriety of direct rulings from the chair on properly divisible or constitutional questions as methods of indirectly changing the rules or setting binding precedent.

                            The Senate voted three times to table various Mansfield points of order, but never reached a conclusion on what that meant until the very end, when they reconsidered the point of order and sustained it. Was the minority negotiating from a position of duress? Maybe. Even probably. But the only precedential value to be had comes from the votes, and the final vote on interpretation of the Mansfield point of order was that it be sustained.

                            What the Senate did each time they tabled the Mansfield points of order is significant. Unable to settle the question of what the tabling meant, they adjourned twice without taking further action, and the third time reconsidered and sustained Mansfield. The precedent, then, is this and no more: a majority can table a point of order. But we already knew that. What there's no precedent for, in your favor, is how to read the effect of the tabling of a point of order on a question improperly or inappropriately decided by the chair.

                            That will be set anew during this debate.

                          •  who has the final word? (none)
                            To me it was clear that the minority in 1975 knew they were out of options.  The question of what the tabling meant would be decided by a bare majority vote.  You can look at this however you want to- thats the clear precedent for me.  The debate was stopped by a bare majority of the vote and the minority party had no other remedy.  They knew in 1975 that they set a dangerous precedent so they attempted to seal up the hole they had made- it doesn't change the fact that they had already accomplished their goal when they stopped debate using the bare majority.  
                          •  If they'd truly succeeded in stopping debate... (none)
                            why would a motion to adjourn carry twice?
                          •  huh? (none)
                            Of course they would prefer to pass the rule change with 66.  If the republicans go downt he same road you would expect them to do the same thing to reduce the political backlash.  The issue is why the minority would capitulate and accept the rule change after this episode when they wouldn't accept a rule of 60 before hand.  You honestly think it had absolutely nothing to do with the fact that they knew there was  nothing they could do to stop the majority once they cut off debate? You keep avoiding that point.  Once debate was cut off the majority decided to go back to the negotiating table what would have stopped them from just holding their vote?  Specifically what would have stopped them?  What remedy was in place to stop them from implementing any changes they wanted to after that?  The minority understood that they had no leverage at all after that and had to accept whatever the majority offered them.  
                          •  I don't avoid the point. (none)
                            I stick to what's measurable. The votes.

                            Frist says the filibusters he engaged in were OK because they were pure of motive, but that Democratic filibusters are unconstitutional because they are "abusive."

                            We can't know what the motives of the Senators were.  We can guess, but we can't know.

                            What we don't have to guess about is how they voted, and they voted according to the rules in 1975.

                            I ask the same question of you. Nothing physically prevented the majority from continuing with their vote. So why didn't they? And how was it that they lost two motions to adjourn rather than go ahead with their vote?

                            But that doesn't settle the question which drove the majority to agree to adjourn and to agree to a compromise, namely: What does the motion to table really entitle us to?

                            One school of thought was probably that it entitled them to proceed straight to their vote and be done with it. The other, that the motion to table entitled the majority to a debate on the merits of the Pearson procedure. Unable to settle the question, they agreed instead to adjournment -- twice -- and finally, a compromise.

                            Yes, the minority was low on options. But if the majority was in the driver's seat, there must have been something stopping them from rolling through to final victory. We can't know with certainty how solid were the grounds on which their doubts rested, but that there were doubts is beyond question. Else this debate would have been over 30 years ago.

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