Will the Senate pull the nuclear trigger - again?

Will the Senate pull the nuclear trigger - again?

By:

LeRoy Goldman

Columnist

Asheville Citizen-Times

January 22, 2017

The inauguration of President Trump ushers in a period of change and tumult that does not occur frequently. But Trump came out of nowhere and won the Republican nomination and the presidency when almost no one expected that he would do anything but flame out.

The 2016 election is one for the books. It was a stunning upset that put egg on the faces of many professional pollsters, and left the Democrats gasping for breath. It gave the voters a crystal clear choice between continuity and change. Change won. Now the Republicans must stand and deliver.

Some of those changes President Trump will be able to accomplish unilaterally with the stroke of a pen by annulling executive orders put in place by his predecessor. And in foreign relations, the president also has great freedom to act without having to seek congressional approval. However, for the most part the changes that the president will seek will require affirmative action by Congress either in the form of new law, appropriations, or both.

The agenda is mind-boggling, complex and controversial. Here’s a sampler: the repeal and replacement of Obamacare, tax reform, energy independence, border security, Supreme Court nominations, the infrastructure rebuild, immigration reform, job creation, homeland security, and the fundamental rewrite of federal work rules that will enable the President to separate the wheat from the chaff in the calcified and unaccountable federal bureaucracy.

On first blush it would appear that the way is clear for the newly minted president to put his program in place. The GOP controls both houses of Congress. But there’s a fly in the ointment, a lethal fly.

Although the GOP controls the Senate by a 52-48 margin, they are far short of the 60 vote super majority that is now necessary to pass legislation or approve nominations to the Supreme Court. The likelihood that at least eight Democrats will vote with the GOP on these matters is nonexistent. Thus, absent something extraordinary, the Senate will be the graveyard for most of the president’s program.

The Senate has brought itself to its knees by its abuse of the filibuster. The abuse has been bipartisan, led by whichever party happens to be in the minority. Current Senate rules require a 60 vote super majority to end a filibuster or threatened filibuster. Those rules have eviscerated the Senate.

The filibuster is not a part of the Constitution. In fact its birth in 1806 was accidental and stemmed from a revision of Senate rules recommended by its presiding office, Vice President Aaron Burr. One of the changes was the elimination of a rule that allowed a simple majority to end debate. That rule change created the filibuster. The first filibuster did not occur until the 1850s. Filibusters remained rare from then until well into the 20th century. However, since the early 1990s, the use of the filibuster by the minority party has skyrocketed to the point of absurdity. Now it’s routine for the minority party to filibuster or threaten to filibuster all major legislation and many judicial nominations.

The Senate can, if it wishes, circumvent the suffocating effect of the filibuster and the 60 vote super majority. It can do so by triggering what is known as the nuclear option. Invoking the nuclear option would enable the Senate to approve measures with a 51-vote majority.

In November of 2013 then Senate majority leader, Democrat Harry Reid, invoked a limited version of the nuclear option thus enabling all presidential nominations to the executive branch and the federal judiciary, excepting the Supreme Court, to be approved by 51 votes.

Senate Democrats and President Obama enthusiastically supported Reid’s move. Republicans, led by their Minority Leader Mitch McConnell, cried foul.

Now Senate Majority Leader McConnell needs to return Reid’s favor and expand the use of the nuclear option to legislation and to nominations to the Supreme Court. If McConnell has not the backbone to end the abuse of the filibuster, he will bear the responsibility for having been responsible for, in my opinion, the single most destructive act of political malpractice in modern times.

If McConnell invokes the nuclear option, the Democrats will predictably go berserk. But it’s not the end of the world for them or the nation. They have recourse. They can develop better policy prescriptions and better candidates for national office and reclaim the governing mandate at the ballot box in 2018 and 2020. It’s called democracy, and, unlike the filibuster, it is in the Constitution.

LeRoy Goldman lives in Flat Rock and can be reached at:

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