by Hannah Burgess
On November 21, 2013, the Senate voted 52-48 to amend the rules regarding confirmation of executive and judicial nominees. The vote allows the Senate cut off debate on executive and most judicial branch nominations with a simple majority of 51, instead of a supermajority of 60 votes. The new rules do not apply to Supreme Court nominations, or to legislation. Senate Majority Leader Harry Reid (D) was able to exercise the “nuclear option” and secure the vote by invoking the common interpretation of Senate rules, wherein a simple majority is required to overturn or uphold rulings of the President Pro Tempore, which then become precedent. “The Senate is a living thing, and to survive it must change as it has over the history of this great country. To the average American, adapting the rules to make the Senate work again is just common sense,” said Reid, defending the move.
The rule change grew out of frustration over partisan gridlock that has been a major theme of the 113th Congress, as President Obama has battled against a Republican party that is increasingly determined to block major Democrat initiatives. The ability of the minority party to influence debate is a long-protected tradition in the Senate, although the rules have been amended previously. The most recent change came in 1975, when the required number of votes to end a filibuster was lowered from 2/3 to 3/5. Both parties have in the past used filibusters to obstruct the agenda of the opposite party, as President Obama acknowledged: “I realize that neither party has been blameless for these tactics. They developed over the years."
The final push towards exercising the “nuclear option” came in response to Republican blocking of several nominees for the D.C. Circuit Court of Appeals. The court is significant to both parties due to its broad control over federal regulations. Republicans had blocked the most recent four nominees to the court, reacting to what they see as President Obama’s liberal agenda and attempting to limit his ability to appoint sympathetic individuals to cabinet posts and federal judgeships. Democrats currently control the Senate, with 55 seats to the Republicans’ 45 seats, but any vote requiring a supermajority was easily stalled by Republicans.
Effects of the Change
Since the rule change, observers have speculated about what the likely effects will be. Some have argued that Senate Republicans will resort to other ways of obstructing agendas that they disagree with, but Senator Reid disagreed: “what could they do more to slow down the country? What could they do more than what they’ve already done to stop the Senate from legislating?”
A significant effect of the rule change could be a permanent weakening of the minority party in the Senate. Republicans expressed dismay over the rule change, arguing that the process of democracy rests on the time-honored right of the minority to participate in debate. “You think this is in the best interest of the United States Senate and the American people?” asked the Republican leader, Senator Mitch McConnell (R). Senator Pat Roberts (R), agreed: “We have weakened this body permanently, undermined it for the sake of an incompetent administration,” he said. “What a tragedy.”
Another significant result of the rule change is that presidents will not have to worry as much over whether or not their nominees could secure 60 votes. With only 51 votes required, there will potentially be less incentive for presidents to consult with Senators and build minority support before selecting a nominee. Presidential appointees to executive and judicial branch posts have a great deal of influence in important issues, including environmental regulations, financial regulations, and consumer protections. With less worry of minority party conflict, Democrats may push for greater expansion of typically contentious regulations. However, some believe that the new rule will encourage both parties to be more attentive to public opinion: if the party in charge uses the new rule to approve nominees who then enact unpopular policies, that party should then suffer a decline in public opinion.
The full impact of the rule change is yet to be determined. It may have a moderating effect on both parties, or it could encourage even greater partisan gridlock as Senate Republicans find new ways to halt nominations they disagree with. A longtime supporter of filibuster reform, Senator Jeff Merkley (D) praised the rule change but acknowledged “the real test will be when we look back on this five years from now.”Hannah Burgess is a graduate student at the University of Texas at Austin at the Lyndon B. Johnson School of Public Affairs.