Reid’s use of the nuclear option is understandable but short-sighted

Putting the nuclear option on the table

U.S. Senate Majority Leader Harry Reid’s “nuclear option” to end the abuse of the filibuster by Senate Republicans amounts to treating strep throat with a throat lozenge. His action may have a short term benefit, but is unlikely to help in the long-run, just as changes to the rules of the Texas Senate helped move the majority’s agenda forward this summer, but damage the institution going forward.

Why should you care about the filibuster? Why would we ever want to allow one person or a minority in a deliberative body to have that much power? Let’s take a look at the issue for a moment and consider the significance of this crisis in American legislative processes.

What is popular may not be best

While “majority rule” is a common form of decision making and is easy to understand, there are many times in our self-governance that we use other standards. It takes a 2/3 vote to ratify treaties and it takes unanimity to convict someone of a crime. One over-simplified reason to look beyond 50 percent making our decisions is to think back to the popularity contest of high school student government elections – sometimes what is popular is not truly the best choice. And sometimes – to implement critical policy, it takes the support and cooperation of more than half of the people.

Another important fact to remember is that the United States was set up to both allow the rule of the majority and protect the rights of the minority. Put yourself in this scenario: Your child belongs to a club that has a set of bylaws that says that all children can participate in the activities of the club. Let’s say that while you have been a dues paying member and supported the club, some of the rest of the club has become frustrated because a few of the children are left-handed and other equipment must be purchased to accommodate the left-handed kids.

A majority has decided to change the bylaws and exclude left-handed kids from participation. Most organizations require a supermajority of 2/3 or more to make it harder to stick it to the minority in situations like this.

Considering the minority

The filibuster in parliamentary bodies is sort of like that. Filibusters can be stopped by a supermajority, but one incentive not to stop a member from halting the action on the occasion that to take a particular action would have a significantly negative impact on a constituency they represent is that such a scenario could arise for any member. So, historically, for better or worse, members of the Senate have been allowed such power for use on rare and important occasions.

And importantly, it placed a requirement of deliberation upon the body that the minority must, at times, be negotiated with. Most reasonable people would concur that in the end, accommodating concerns of the minority usually makes us stronger. In strictly majority-rule, one does not have to even consider the needs or desires of the minority.

Not without good cause

Reid’s action to dilute the meaningfulness of a filibuster in the current atmosphere is not without good cause. A procedure that was used one time when LBJ was Senate Majority Leader has been used over 400 times during the Obama administration to hold Obama appointments hostage and halt legislation of the majority. The chart below shows the escalation in recent decades of the use of the procedure:

The fix is not this simple

In the U.S. Senate, the rules meant to protect the minority have become abused to the point of halting action of the institution. The fix is not this simple, but one alternative to simply ending the power of the filibuster would have been to require that members maintain the floor for the duration of the filibuster. Everyone remembers Wendy Davis’ marathon filibuster at her desk in the Texas Senate. Currently in the U.S. Senate, a member only has to declare a filibuster and does not have to actually stand and speak during the procedure. To require such would likely cut down on abuse of the rule.

In Texas, both the filibuster and another rule that requires 2/3 of the members of the Texas Senate to bring a piece of legislation up for debate have been under fire in recent times. Just as Wendy Davis’ filibuster was cut short by a non-traditional majority vote in an inexplicably amateurish move by the head of the Texas Senate this summer, there is much discussion of the Texas Senate simply doing away with the rules that require 2/3 of members to move forward with legislation. This rule has served Texas well for decades through both Democratic and Republican majorities, but the radical divide in today’s state and national politics is pushing once-minorities to change rules that will ultimately come back to hurt them.

This nuclear option does not solve the problem

In Texas, the causes of the problem are not the same. Rather than abuse by the minority, it is simply the contempt of the majority that has led to the changes in long-standing rules. On the federal level, both Democrats and Republicans have abused this system, but in the current administration the problem has reached new levels.

Reid’s implementation of the nuclear option, while understandable from one perspective, does not solve the problem that caused the crisis. There are efforts by organizations like No Labels to solve some of these problems in a non-partisan manner. And there are pressures to change the underlying problems – like redistricting gerrymandering and campaign finance issues – that could change the atmosphere over time so that there is less pressure to change rules that are in place for very good reasons.