Will the Nuclear Option’s fallout yield a “Survivor”?

RANCHO SANTA FE, Ca., November 25, 2013 – While Secretary of State Kerry reached a temporary Nuclear Peace Treaty with Iran, we may have been better served had he tried to negotiate a settlement between the warring factions within our own Senate. This past week, Senate Majority Leader Reid and his Party exercised what has become colloquially known as the “nuclear option;” a maneuver that changed the rules of the United States Senate with respect to certain political and judicial appointments that were otherwise vulnerable to the parliamentary procedure of “filibuster.”

Was this move a preemptive or defensive political strike? As Hillary Clinton might be expected to say, “What difference, at this point, does it make?”

Biased advocates will deliver the benighted speaking points of their respective Parties while giving little heed to history or reality. Ardent Republicans will cry “foul” and describe the move as a “naked power grab.”   Simultaneously, zealous Democrats will assert that they had no option given the “obstructionist behavior” of Republicans.

While these same individuals might mock the tribal nature of many third-world countries, they choose to ignore the fact that their behavior has degenerated into a tribal display as well. Any pledge of achieving bipartisan accord has been dismissed as nothing more than a vacuous campaign promise.

Given Congress’ single-digit approval rating, one might reasonably think that the Senators and Representatives who were up for re-election in 2012 might not have fared well. One would be wrong.

Unlike CBS’ long-running show, Survivor, almost no one ever gets “voted off the island.” In fact, 91 percent of the Senators and 90 percent of the Representatives, who were running for re-election this past year, were returned to office.

Given that rate of success, particularly under the circumstances, it is easy to understand why our elected officials believe they can behave so badly without any fear of repercussion.

However, what would happen if the electorate began to take its responsibilities seriously? What would happen if it became more informed? What would happen if it didn’t mindlessly surrender its votes to Party dicta? Perhaps, we’d begin to hear the equivalent of Survivor’s famous line: “Bring me your torch. The tribe has spoken.”

So, let’s begin by examining the nuclear option within a historical context; a context that many citizens, and apparently nearly all elected officials seem to lack.

Once upon a time, a group of old men were tasked with establishing a new Government. They recognized that pure democracies inevitably collapse because they fail to give a voice to the minority. As a result, the Framers crafted a document that called for a democratic Republic which, for the first time in history, held the People to be sovereign and provided them with a representative form of Government.

The Constitution provides as follows:

  • “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (Art. I, Sec. 1);
  • “The executive Power shall be vested in a President of the United States of America” (Art. II, Sec. 1); and
  • “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (Art. III, Sec. 1).

This was done to establish a balance of power between the three branches of Government.

While some may scoff at the abilities of the men who drafted the Constitution, let the record show that the document has fundamentally preserved the Republic for over 226 years. Had the task fallen upon our present leadership, Las Vegas might book the over/under at 226 days…or maybe even hours.

The Framers also created a clear distinction between the House and Senate in Article I, Sections 2 and 3, respectively. Under the original provisions, citizens directly elected Members to the House (a practice that remains), while Senators were appointed by their States’ legislatures (a practice that has been discontinued).

The latter approach secured the ability of the States to check any expansion of the Federal Government that might otherwise be in contravention of the Tenth Amendment. However, over the years, corruption intervened. Senatorial appointments were occasionally offered as a repayment of political debt and were also subject to bribes. In some cases, seats even remained unfilled for varying lengths of time because a State’s legislature couldn’t agree on an appointment.

This led to the Seventeenth Amendment in 1913, which ignored the reason for the distinction drawn by the Framers between the House and the Senate in favor of treating the disorder with the placebo of an election. Unfortunately, this solution did nothing to eliminate the offending elements of favoritism and monetary influence.

Why is this important with respect to the nuclear option?

The Seventeenth Amendment dramatically blurred one of the most important contrasts between the bicameral chambers. Another major difference happens to be the availability of a parliamentary procedure known as a “filibuster” in the Senate, which the nuclear option radically diluted.

Filibusters have quite a colorful history in the Senate. They originally allowed a single Senator to delay or even block legislation and appointments from occurring. Then, Rule 22 was adopted in 1917 to allow the Senate to end a filibuster upon a two-thirds majority vote through a procedure known as “cloture.”

Two things are of note: The Rules have been changed before; and cloture used to require a two-thirds vote (i.e., 67 votes), which was an extremely high threshold meant to preserve the rights of the minority to be heard.

The last significant use of cloture requiring a two-thirds majority came in 1964 when the Senate ended the 60-day filibuster of Southern Democrats who were trying to block civil rights legislation that included anti-lynching provisions. Then, in 1975 under the Ford Administration, Rule 22 was amended to reduce the required vote to its present three-fifths (i.e., 60 votes). After the nuclear option, a simple majority will do.

Have filibusters been abused? Yes. Will it happen in the future with respect to the political and judicial appointments that the nuclear option impacts? No. The minority’s voice has effectively been silenced by majority rule.

Interestingly enough, to change the Rule, the Democrats had to use procedural ploys to circumvent the normal course of Senate business. Otherwise, the Rule change itself could not have been passed by a simple majority.

However, don’t blame the Democrats. Both Parties routinely debase the Republic by gerrymandering Districts to retain control of Congressional seats, so we should expect this kind of behavior.

In addition, the Democrats didn’t originate the concept of a nuclear option. Back in the 1950s when they were using filibusters to stall President Eisenhower’s judicial appointments, a fellow by the name of Richard Nixon wrote a brief on what might be done to avoid the tactic.

Then, the Republicans resurrected Nixon’s “tricky” concept in 2005, when the Democrats were again using filibusters to disrupt President Bush’s appointments. It should be noted that the Democrats were just retaliating for the Republicans’ use of filibusters to stifle President Clinton’s appointments. “Children will be children,” as the saying goes.

Furthermore, Senator Reid and his normal supporting cast correctly assert that the Republicans have used (or threatened) filibuster at an unprecedented rate. Since the Democrats took control of the Senate in 2007, Republicans have been responsible for about 31 percent of the cloture motions filed in the history of that chamber.

Senate Minority Leader Mitch McConnell should be ashamed of that record.

Of course, Senate Majority Leader Reid should be ashamed as well. Just this summer, he reached an agreement with McConnell and gave his word that he would not exercise the nuclear option. Apparently, he didn’t end his promise by emphatically saying “period,” so maybe his word shouldn’t count.

However, what about his position in 2005? Should that be expunged as well … along with the positions of Democratic leaders such as Senators Schumer, Feinstein, and Baucus, and then-Senators Hillary Clinton, Joe Biden, and Barack Obama? To wit:

“The filibuster is not a scheme, and it certainly isn’t new. The filibuster is far from a procedural gimmick.”

– Sen. Reid

“We are on the precipice of…a Constitutional crisis. The checks and balances, which have been at the core of this Republic, are about to be evaporated by the nuclear option…It is amazing, almost a temper tantrum…”

– Sen. Schumer

“The nuclear option…will turn the Senate into a body that could have its rules broken at any time by a majority of Senators unhappy with any position taken by the minority. It begins with judicial nominations. Next, will be executive appointments. And then, legislation…If the Republican leadership insists on forcing the nuclear option, the Senate becomes, ipso facto, the House of Representatives…”

– Sen. Feinstein

“This is the one-way democracy ends; not with a bomb, but with a gavel.”

– Sen. Baucus

“The Senate is being asked to…ignore the precedent, to ignore the way our system has worked; the delicate balance…that has kept this Constitutional system going – for immediate gratification of the present President.”

– then-Senator Hillary Clinton

“This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party…designed to change the reading of the Constitution…It is nothing more or nothing less.”

– then-Senator Joe Biden

“… I rise today to urge my colleagues to think about the implications the nuclear option would have on this chamber and this country. I urge you to think not just about winning every debate, but about protecting free and democratic debate.”

– then-Senator Barack Obama

These prominent Democrats were vehemently opposed to the use of the nuclear option in 2005. Each of them recognized the absolute necessity of preserving the minority’s right to be heard even if it required the somewhat arcane use of filibusters.

So, what’s changed?

Then-Senator Obama is now President, and the Democrats are no longer a minority in the Senate.

This is not to dismiss the culpability of the Republicans or their ability to match the blatant hypocrisy of the Democrats. It is simply meant to emphasize how little words mean among politicians. Perhaps Secretary Kerry should keep that in mind as he negotiates agreements in which the term “nuclear” has far more relevance.

Unfortunately, as with any nuclear attack, fallout can become a severe issue. No one will ever accuse our current cadre of elected officials of having a long-range vision. At best, they look to the end of the next election cycle. Too often, even that is a stretch for them.

While the Democrats may celebrate by quickly stacking the D.C. Circuit Court to garner favorable decisions (the real plum upon which they were focused), the roles will be reversed at some point. If they are hoping that Republicans will act with more integrity than they have, they may become as bitterly disappointed as the rest of us.

Let us end with one of Aesop’s fables:

One winter, a Farmer found a Snake stiff and frozen with cold. He had compassion on it, and taking it up, placed it in his coat. The Snake was quickly revived by the warmth, and resuming its natural instincts, bit its benefactor, inflicting on him a mortal wound. “Oh,” cried the Farmer with his last breath, “I am rightly served for pitying a scoundrel.”

To paraphrase Aesop: We are rightly served for electing scoundrels.

We need to become more informed before 2014, take our responsibilities seriously, and stop reinforcing the definition of insanity. We need to invoke our own nuclear option. Maybe then, the Republic will “survive” and the scoundrels will get the message: “Bring me your torch. The tribe has spoken.”


T.J. O’Hara is an internationally recognized author, speaker, and strategic consultant in the private and public sectors. In 2012, he emerged as the leading independent candidate for the Office of President of the United States and the first nominee of the Whig Party in over 150 years.

This article first appeared in T.J. O’Hara’s recurring column, A Civil Assessment, in the Communities section of The Washington Times.