J. Scott Applewhite / AP
Tuesday, July 16, 2013 | 2 a.m.
Senate Majority Leader Harry Reid is mad as heck, and if Republicans don’t help the Democrats confirm seven of President Barack Obama’s nominees to the administration Tuesday, he’s going to undo the procedural filibuster.
Or maybe he won’t.
Reid and the Republicans are locked in a bluff-off, as Washington, D.C., tries to gauge whether the Senate majority leader will make good on his threats to upend the 60-votes-to-pass rule for administrative nominees, or whether his threats are merely a tactic to get certain long-pending nominees through.
Ending the filibuster is known as the “nuclear option” — so called because Democrats would ignore the procedural filibuster rule in favor of constitutional language that says each House of Congress can set its own rules, conceivably by simple majority since filibusters don’t appear in the Constitution.
Reid says he has the Democratic votes to get a simple majority rules change through.
Republicans are warning that making this procedural change by majority fiat will herald the death of the Senate.
But Reid is no stranger to procedural workarounds. Win or lose, he’s often eschewed common Senate practice in favor of sleights of Senate procedure to get his way. And if he does go for a rule change Tuesday, it wouldn’t be the first time he’s gone nuclear.
Here’s a look at Reid’s past procedural gambits and whether they worked.
The Super Committee
Perhaps Reid’s most famous procedural workaround came as the country was about to plunge off the “fiscal cliff” the first time.
Reid’s main proffer to the 2011 debt ceiling stalemate was the creation of a special 12-member committee to craft a bill to ax $1.2 trillion from the federal budget over 10 years in exchange for raising the debt limit. The “Super Committee” was supposed to come up with a deal by Thanksgiving 2011. It didn’t, triggering the automatic sequestration cuts that began hitting federal agencies this spring and summer.
Despite the failure of the Super Committee, it’s not clear this one counts as a total loss for Reid.
Reid managed to design the sequestration cuts so that they protected traditionally Democratic priorities. The cuts were meted out 50 percent on defense and homeland security spending, and 50 percent on everyone else. Social Security, Medicaid and Medicare remained all but untouched.
Although it wasn’t an ideal deal, it resulted in an escape hatch for programs that otherwise might have been changed in order to meet steep demands for reduced spending.
Health care and the budget reconciliation process
In a Congress that remains deadlocked on questions as simple as who should run the Consumer Financial Protection Bureau, how did lawmakers manage to push through something as contentious as Obamacare?
That’s another example of a Reid gambit.
The budget reconciliation process is commonly used when hashing out its namesake: a budget resolution.
But the procedure has a special allure for other contentious legislation as well, because to pass a budget resolution, one only needs a simple, 50-vote majority. Time for debate is limited, so there are fewer options for the minority to try to amend away the spirit of the legislation.
There is one key string attached: If one wants to put a bill through by reconciliation, any part of it is open to objection. Senators can raise points of order against specific provisions of the bill in question on the grounds that the provision is “extraneous” to the budget.
It’s up to the Senate parliamentarian to decide whether any objection has grounds. If the parliamentarian’s decision is yes, then it’s up to those who want to defend that provision to come up with 60 votes to save it.
But for extremely controversial bills, such as the Affordable Care Act, it is the tool of choice and exactly what Reid used to work “Obamacare” around the ever-present threat of a Republican filibuster.
Filling the tree
If Republicans have become addicted to threatening filibusters, Reid’s bad habit of the past few years was filling the amendment tree — the quickest way of effectively blocking the minority party from offering amendments that could scuttle the majority’s bills.
Republicans complained loudly for the entirety of the 112th Congress that Reid’s frequent filling of the amendment tree drove them to filibuster. Reid filled the amendment tree almost four dozen times by the midway point of the 112th Congress. That’s about four times more than former Senate Majority Leader Bill Frist — another infamous tree filler — had during his career.
Reid, meanwhile, argued that Republicans were using the amendment process to try to gut Obama’s legislation instead of perfect it. But he did agree to restrain his use of the tactic at the beginning of 2013 in a handshake agreement under which Republicans also said they would use fewer filibusters, except in extraordinary circumstances.
That handshake agreement has set the stage for current filibuster fight.
The clay pigeon
In 2007, the first time Reid tried to get immigration reform through a far less friendly Senate, he put all his eggs in the basket of an arcane procedure known as the clay pigeon — an amendment collective that would allow the Senate to rapid-fire vote through a string of approved amendments and limiting the time for debate on extra unplanned items.
The point? Not to rock the boat on an already rocky legislative process. But this time, it didn’t work.
The clay pigeon blew up early when senators wouldn’t vote down Sen. Max Baucus’ amendment to get rid of the bill’s requirement to issue biometric ID cards, an item pro-enforcement Republicans wanted left untouched in exchange for their support. Half the clay pigeon never got voted on, and shortly thereafter, the bill was dealt a decisive defeat.
The first nuclear strike
Back in 2011, Reid and Senate Minority Leader Mitch McConnell were having a spat about whether Republicans could propose all the amendments they wanted to a bill censuring China for fixing the value of the yuan.
The problem? Many of the amendments Republicans wanted to propose had nothing to do with the yuan, or any other currency for that matter.
As the two leaders bickered, Reid pulled off a fast one: He raised a point of order against motions to suspend the rule that says you can only present germane amendments. Then, he objected to the move he’d just made — on McConnell’s behalf (and seemingly, without his permission).
Then, he instructed his caucus to vote against the objection — a kind of sneak-around-the-back-door way of doing a rule change, because it put his party in the position of only having to come up with enough votes to defeat a measure, not 60 votes in favor of passing it.
The rule to allow nongermane amendments has not been revived since.