Harry Reid puts nuclear option in back pocket

Senate Majority Leader Harry Reid (D-Nev.) will not attempt to strip Republicans of their power to filibuster before the November election but is leaving open the possibility if Democrats hang on to the Senate. 

The Democratic leader caused a stir on Thursday when he slammed a Republican objection to passing Export-Import Bank legislation without amendments and said he should have listened to colleagues who pushed for changes in Senate rules.

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But Reid on Monday said he has no plans to attempt to limit Republicans’ ability to block legislation by a tactic known as the constitutional option — or, by critics, as the “nuclear option.”

“We’re not going to do it this Congress,” Reid told The Hill. 

A senior Democratic aide said leaders have no appetite to rewrite the filibuster rule before the end of the year.

“It would be a useless distraction,” said the aide. “People want us working on jobs, not arguing over procedure.”

There is little support for ushering in an outright end to the filibuster, which empowers the minority party to block legislation and nominees with 41 votes.In the Democratic Conference, however, there is growing momentum for limiting its application and making it more difficult to employ.

One proposal is to prohibit filibusters on motions to begin debate. Republicans infuriated Democrats last week by blocking a motion to take up legislation on student loan rates.

Another idea is to require filibustering lawmakers to actively hold the floor. Senators can now block legislation merely by voicing an objection. Reformers think filibusters would be less frequent if senators had to muster the stamina for continuous debate.

Any change of the filibuster rule would likely happen through the constitutional option because Republicans are generally opposed to reducing the filibuster’s power. The tactic is sometimes called the nuclear option because it is controversial enough to torpedo partisan relations in the Senate, a body that cannot function without unanimous consent.

Under regular order, 67 votes are needed to change Senate rules.

The constitutional option lowers the bar substantially. Using it, the majority party can overturn a ruling of the chair by a simple majority vote. Though very rarely employed, Reid used it in October to strip Republicans of the power to introduce amendments after the Senate voted to move to a bill’s final passage.

Sen. Tom Udall (D-N.M.), a leading advocate of reforming the filibuster through the constitutional option, said it should be done at the beginning of a new Congress, not in the middle of a session.

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“I just think changing rules in midstream is much more contentious and much more likely to be viewed as partisan,” he said. 

But Udall thinks there is growing support for rewriting the Senate’s filibuster rule at the start of the 113th Congress in January.

Republicans have waged 84 filibusters this Congress to slow or stop legislation, according to data posted on the Senate’s website.

“There’s a real frustration with how we’re proceeding in this Congress,” said Udall. “There’s starting to be more movement outside with the grass roots.”

Democrats are leaving open the option of rewriting the filibuster rule if they keep their Senate majority. Republicans are unlikely to push for such reform if they capture the chamber because they are ideologically opposed to curtailing the power of the Senate minority. 

In 2005, then-Senate Majority Leader Bill Frist (R-Tenn.) considered employing the constitutional option to end filibusters of judicial nominees, but current Republican Leader Mitch McConnell (Ky.) has consistently opposed using the tactic to limit filibusters of legislation. 

Democrats’ unwillingness to completely close the door on filibuster reform might signal they are more confident about their chances of winning the Senate in November. 

Reid appeared poised to pull the trigger on the constitutional option last week when Republicans filibustered his attempt to pass a reauthorization of the Export-Import Bank by unanimous consent. The House passed the bill Wednesday by a vote of 330-93.

Reid said he should have followed the advice of Udall and Sen. Jeff Merkley (D-Ore.), junior members of the conference, who pushed for filibuster reform at the start of the 112th Congress.

“These two young, fine senators said it was time to change the rules of the Senate, and we didn’t. They were right. The rest of us were wrong — or most of us, anyway. What a shame,” Reid said.

“If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused and abused,” said Reid.

Advocates of reform jumped on Reid’s comments to urge action.

“We commend Senate Majority Leader Reid for his remarks and for recognizing that the reform-minded senators were right, after all — that rules reforms are needed to ensure that the U.S. Senate lives up to its great traditions and is capable of meeting the challenges of our time,” said Shane Larson, legislative director of the Communications Workers of America.

Reid’s patience had worn thin after Republicans earlier in the week filibustered legislation to keep interest rates for federally subsidized Stafford loans at 3.4 percent.

Democrats say the “gentlemen’s agreement” Reid struck with McConnell at the beginning of last year to reduce filibusters has fallen apart.

Republicans agreed to refrain from filibustering motions to begin debate, and Democrats in turn pledged to allow more votes on Republican-sponsored amendments.

Democrats say Republicans now routinely block motions to begin debate, while Republicans charge Reid often denies them the opportunity to offer amendments.  

A Democratic leadership aide said Republicans have tried to exploit the agreement by insisting on non-germane amendments intended to hurt vulnerable incumbents.

“The gentlemen’s agreement isn’t playing out how we thought it would,” said Udall.