3 Reasons The Senate Didn’t Go Nuclear
By Frank James
With Tuesday's bipartisan agreement to let senators vote on seven of President Obama's previously stalled nominations, the Senate proved that the art of compromise isn't dead in Washington.
The pact in which Republicans agreed to curb their use of the filibuster, at least on executive branch nominations, was yet the latest instance in recent Senate history in which those on both sides of the aisle stared at the possibility of the Senate majority using the "nuclear option" and blinked. A threatened nuclear strike by Republicans in 2005 over former President George W. Bush's judicial nominations was also averted by a last-minute agreement.
For Harry Reid, the Senate majority leader and Nevada Democrat, it was a win since he essentially got an end to what he has called Republican obstructionism, at least on many of the executive nominees.
Republicans got Senate Democrats to not only drop the nuclear threat, but to abandon two of Obama's National Labor Relations Board nominees who the GOP said the president unconstitutionally appointed. It was an assertion a federal appeals court backed them on, concluding that what Obama claimed were recess appointments weren't really that, since the Senate was technically still in session. The Supreme Court has agreed to hear the dispute.
The deal was also a boost for Sen. John McCain, R-Ariz., who Reid said was the one senator most responsible for resolving the crisis.
In the end, both sides could claim victory — the essence of compromise. "We get what we want, they get what they want, not a bad deal," Reid said on the Senate floor Tuesday.
Senate Minority Leader Mitch McConnell sounded a similar note: "Well, I think it's a step in the right direction that the majority has chosen not to exercise the nuclear option. We feel good about that. I think they feel good about it. So I think that crisis has been averted."
Here are three reasons the Senate avoided going nuclear:
1. Fear of becoming the House
The Senate was forced to choose between two tyrannies: a tyranny of the majority, which is pretty much the way the House has always operated; and its own tradition, which allows a tyranny of the party in the minority.
In the House, the majority party often uses its numerical advantage to stampede over the minority. By contrast, Senate rules give the minority party power to shape the Senate's agenda, or to shape legislation by threatening to or actually throwing sand in the gears. It's a system built for compromise since the majority needs the minority to agree to some extent for anything to get done.
The Senate takes pride in this difference. Indeed, some senators in recent days lamented that the Senate could become more like the House if Reid changed the body's rules through the nuclear option. The agreement holds off that prospect, at least for the moment.
2. Today's majority is tomorrow's minority
Senators are keenly aware that control of the Senate has been a much more volatile affair than in the House. Since 1945, Senate control has shifted 12 times compared with seven for the House. During that time, the House had a 40-year stretch during which Democrats were in control.
The Democratic Senate majority currently rests on 53 Democrats and two independents who caucus with the Democrats. But Republicans appear to be within striking distance of regaining Senate control after next year's election. The decision by Brian Schweitzer, a popular former Democratic Montana governor, to forgo a Senate race, has some Congress watchers saying that a GOP takeover of the chamber is more plausible now.
Such a possibility made some Democrats, including one who is not running for re-election — Sen. Carl Levin of Michigan — reluctant to change rules that could prove useful when (not if) Democrats once again find themselves in the Senate minority.
3. Fear of a complete congressional meltdown
Because bipartisan compromises are essential to the Senate functioning, the upper chamber still has the ability to produce complicated and controversial legislation supported by lawmakers of both parties, like the immigration and farm bills.
The House, on the other hand, has become deeply dysfunctional.
Congress currently resembles a bird with a broken wing. If Reid had exercised the nuclear option, Congress would have essentially had two broken wings.
And there were very real fears that the use of the nuclear option on executive nominations would have led to it being detonated on judicial nominations, including for the Supreme Court, and perhaps even controversial legislation.
That specter was too much, even for senators in a hyperpartisan era. So they stepped back from the abyss.