May 19, 2024

Nuclear Option at last


Founded by Drew Pearson 1932

Nuclear Option at last

By Douglas Cohn and Eleanor Clift

WASHINGTON – First proposed by Republican senators during one of the periods when they were in the majority, the Nuclear Option to alter the filibuster rule is rooted in complex procedural machinations that circumvent the Senate’s rule requiring a yea vote of two-thirds of the members to change a rule. Through a set of arcane procedures, however, the Majority Leader has the ability to call for a simple majority vote to change the rules at the beginning of a new Congress, which is what Majority Leader Harry Reid, D-Nev., did by extending the official beginning of the Congress that actually began earlier this year.

Previously, the threat of the Nuclear Option successfully brought about changes such as the three-fifths cloture rule in 1975, but the Nuclear Option was never actually employed until now because today’s majority party knows it is likely to become the minority party at some future date.

America’s complex system of checks and balances is a primary and essential part of the Constitution. The executive branch has limited powers. Congress is divided into two chambers, the House of Representatives representing 435 House districts and the Senate’s 100 senators representing 50 states. The judiciary stands as a brake on both executive and congressional overreach. All this should be sufficient, but the Senate, invoking James Madison’s fear of the “tyranny of the majority,” added its own extra-constitutional check, the filibuster. This uniquely senatorial check was coveted by many if not most senators until Republican senators went for overreach, using the filibuster more often and more indiscriminately than ever before.

As a result, Democrats triggered the Nuclear Option, but only for executive appointments, excluding Supreme Court justices. Republicans yelled foul, claiming the Senate is now no different than the House of Representatives. But then the Founding Fathers never intended the two houses to have different voting requirements, except as delineated in the Constitution (two-thirds majorities for impeachment trials, for example).

What the filibuster actually created was the tyranny of the minority because it allowed 41 senators to prevent 59 senators from passing legislation and confirming executive appointments to the judiciary and other federal offices. Still, we hear the false claim that this is what the Founding Fathers intended when they drafted the Constitution in 1787 even though the first filibuster did not occur until 50 years later. In fact, all the evidence points to their true intent, which was to allow all the members in each House the right to vote up or down on all legislation, with the majority prevailing. The Constitution they wrote did not envision committees that could kill bills or legislative leaders who could prevent bills from coming to the floor of the House or Senate. And it certainly did not envision the minority-empowering filibuster.

What the Constitution did mistakenly provide was Article I, Section 5 that allows each House to make its own rules. This is what led to the filibuster because there is no check or balance to such rule making, and there should be. For example, the rules could be subject to judicial review to ensure that they comport with the Constitution and the inherent rights and obligations of individual members to represent their constituents.

© 2013 U.S. News Syndicate, Inc.

Distributed by U.S. News Syndicate, Inc.


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