This headline from Alexander Bolton in
The Hill has pretty much set the wires on fire:
Reid triggers nuclear option to change Senate rules and prohibit post-cloture filibusters
I think that's way overstating the case, though. What happened in the Senate tonight bears some strong similarities to what observers have come to think of as the "nuclear option," but there have been no changes to the rules that would really eliminate or in any way seriously constrain the use of the filibuster.
Here's what did happen. The Senate is in the middle of considering the anti-currency manipulation bill. Meanwhile, the Republicans want very much to get out from under the rhetorical charge, leveled by the president, that they were blocking the Congress from having a vote on the American Jobs Act. So Minority Leader Mitch McConnell (R-KY) proposed attaching the AJA to the currency bill through the amendment process, thereby giving the AJA a vote and freeing them from the president's charge.
The problem with that, though, is that many Democratic senators had enough problems with the AJA that they wanted to consider at least a few amendments to the bill as it now stands, and having a quickie vote on it in the form of an amendment to a completely different bill doesn't really allow for that. In other words, adding the AJA as an amendment is a way to force Democrats into the embarrassing position of opposing the AJA in its unamended form. Majority Leader Harry Reid (D-NV) offered in response to drop the currency bill temporarily and instead take up the AJA as a free-standing bill, but Republicans had no interest in actually allowing that, and blocked it.
UPDATE: Reporting from Ryan Grim and Michael McAuliff at the Huffington Post reveals that the fight was actually about a different amendment, and that Dems had already agreed to take the hit and dispose of the AJA amendment in order to get the currency bill done. But Republicans tried to shoehorn a different amendment into an emerging agreement, and ended up blowing it up instead.
That's all just background to tonight's maneuvering. Earlier today, the Senate voted to invoke cloture on the currency bill, which means that the path to a vote on passage is clear. But Republicans still insisted on having votes on their amendments, including the addition of the AJA, even though that has nothing to do with the currency bill. But once cloture is filed there are deadlines for filing amendments. And post-cloture, there are rules about amendments being germane to the underlying bill.
Those rules would ordinarily have excluded a vote on the AJA amendment, among others. So Republicans moved to suspend the rules and allow the vote anyway. That would require a 2/3 vote, as it does in the House, but is a maneuver that almost never succeeds in the Senate. Some of the reporters covering tonight's events have been tweeting that it hasn't happened in 70+ years.
Now, that's something that they're entitled to try to do, but like I said, it's pretty much guaranteed to go down in flames. Which really means it's a giant waste of time. So a point of order was made the motion and the amendment were dilatory, and therefore out of order.
Here's where the similarity to the "nuclear option" comes in. The ruling from the chair—on the advice of the Parliamentarian, apparently—was that the amendment was not in fact out of order. At this, Reid moved to appeal the ruling of the chair, and a majority voting to overturn it (and note, we are talking about a bare majority of 51 here), the end result is that the amendment is considered out of order, and cannot be considered. So a simple majority has changed the outcome of the ruling here. That is the similarity to the "nuclear option," though the ruling doesn't impact the filibuster, per se. Still, a very similar procedure can be used to reverse unfavorable rulings on anything, including the filibuster, and doing so on the subject of the filibuster was what people came to understand as the "nuclear option" way back in 2005.
It's also worth noting that reporters covering the events tonight consider tonight's maneuvers to be unprecedented. But that's not exactly the case, either. On Oct. 3, 1977, a similar ruling was used by then-Majority Leader Robert Byrd (D-WV) to dispense with problematic, post-cloture amendments also considered dilatory. I'm not really sure why this hasn't come up.
At any rate, the discussion on the floor has in fact wandered into rules reform territory, which is not altogether unfitting. If this really were the nuclear option, that would of course mean that the infamous "Gentleman's agreement" was now inoperative, since part of that deal was that neither party would use the "constitutional option" (which would under most definitions encompass the slightly different "nuclear option" as well) in this Congress or the next. Do Republicans really want that door open? We can do that, I guess. But we might as well go all the way, then.
