7

In 2013 the majority (but not super-majority) Democrats in the US Senate invoked the nuclear option for confirming cabinet appointments. Today, the majority (but not super-majority) Republicans are using that to confirm President Trump's cabinet appointments despite Democrat's objections and concerns. I have heard this described as their actions coming back to bite them and other similar phrases.

If the Democrats hadn't changed the rules back in 2013, what would have stopped the Republicans from changing the rules in 2017?

Furthermore,

  • Why do people say the Democrats shot themselves in the foot, if the Republicans could have just done the same thing themselves?
  • Why didn't they "turn on" the nuclear option, do the business that was being blocked, and then turn it back off?

Related questions:

Did the Senate break their own rules by invoking the nuclear option?

Can cloture for position nominations ever be returned to 60/100 in senate?

  • I was trying to keep it to one question... Did the Democrats suffer consequences for invoking it? Why do people say the Democrats shot themselves in the foot, if the Republicans could have just done the same thing themselves? Why didn't they "turn on" the nuclear option, do the business that was being blocked, and then turn it back off? – stannius Feb 9 '17 at 17:52
  • I actually think that " Did the Democrats suffer consequences for invoking it?" is a better question than the one asked. I think if you ask that. Then after it gets answered youcould ask each one of your other questions assuming you still dont understand how it works. – SoylentGray Feb 9 '17 at 17:54
  • I Think I would break your 3 added question off as a new question. Those 3 fit better together on their own rather than putting them with this question – SoylentGray Feb 9 '17 at 21:23
  • Other than a thorough answer to the consequences question, I do believe the other two questions are basically answered by DavidGrinberg's answer. – stannius Feb 9 '17 at 21:45
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Nothing at all

From a legal standpoint the filibuster is just a parliamentary rule created by the Senate. Since the Senate creates and changes its own rules by voting on those rules, the Republican majority in the Senate could have triggered the nuclear option today in just the same way. Infact, Trump has suggested using the nuclear option again to break any potential filibuster on the Gorush nomination (the currently nuclear option only removed filibuster for non-SCOTUS picks).

But there are still reasons why they might not want to do this. The first one is optics. If I blow up the filibuster just to get my people through, it's going to look bad. The Democrats faced this in 2013.

The second, and perhaps more important reason, is retribution. Government power goes in cycles. Today I have the power, but chances are that you will have the power not too far from now. So what happens when I go nuclear and then you get the power? You will have no reason to respect previous boundaries. That is what we're seeing today. For example, if Reid had not used the nuclear option, the chances of DeVos (who only made it in a 51-50 vote) getting through the senate would be minimal. But since there is no more filibuster the Democrats were unable to block DeVos.

This also brings up another option: Why didn't the Democrats just bring back filibusters before they left? There is actually nothing stopping this, even today. But again, why would the Republicans respect this when the Democrats went nuclear on them? As soon as the other foot hit the floor the Republicans would have gone nuclear again because the line in the sand had been crossed.

I think ultimately the question is if the Democrats didn't use the nuclear option in 2013, would the Republicans have used it today. That, however, is unanswerable.

  • 2
    This is a great answer but your TL;DR seems to not accurately reflect the answer's detail. I would edit it to "Nothing at all legally; but politically, a series of possible downsides" – user4012 Feb 9 '17 at 18:19
  • Was such a rule change openly discussed for a previous senate? – user9389 Feb 9 '17 at 18:23
  • @notstoreboughtdirt Rule change which way? To bring filibusters back or to take them away? – David says Reinstate Monica Feb 9 '17 at 18:23
  • @user4012 I slightly disagree because nothing I list actually stops them, its just small things to consider. I also think that there is a pretty good argument to be made (but not here) that the Rs would have gone nuclear anyways at this point. – David says Reinstate Monica Feb 9 '17 at 18:24
  • Sorry I mean taking away the filibuster. My thought being ideas sometimes haven't been thought up long before they are used. – user9389 Feb 9 '17 at 18:25
2

If the Democrats hadn't invoked the nuclear option in 2013, couldn't the Republicans could just invoke it today?

Yes, but they might not.

The only legal difference is that it is already done. So they don't have to go through the vote. And they don't have to justify it in court later. It's already been accepted as valid. That wasn't a huge hurdle, but it was a possible hurdle. Until someone tried it, it might not have worked. The threat of using it had value in and of itself.

There are still Republicans who favor the filibuster for its own sake. Some others have called for Republicans to remove the filibuster immediately so that Neil Gorsuch can enter with a simple majority and they can pass legislation alone. Yet they haven't done so. Three Democrats voted against the nuclear option in 2013. Three Republicans would have been enough to block it in 2017.

It's not evident that they have the votes to pass it. Three of the seven Gang of Fourteen Republicans are still in the Senate: Susan Collins; Lindsey Graham; John McCain. While they might vote for it eventually, they are unlikely to do so if they have more immediate alternatives.

Without it, it is likely that Democrats would have pressured Trump's appointees to have provided more documentation but would have eventually voted for most of them. Why? Because otherwise, Republicans would be able to use it.

The Republicans chose not to use the nuclear option in 2005. As a result, they had the filibuster for the first four years of the Obama administration. If the Democrats had not used it, Republicans would have had it for six years. And they'd remember the power of the filibuster. They might not have been so eager to eliminate it. It took the Democrats six years (including the last two years of the Bush administration).

We don't know what would have happened if the Democrats had not used the nuclear option in 2013. But we do know what happened when they did.

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Here are a listing of things that prevented Republicans from pursing the same strategy prior:

  • Respect for Senate tradition
  • Respect for the Senate being the most deliberative body in the world and the right for countervailing voices to be heard
  • Respect for the role of the loyal opposition party views
  • Respect that the cloture vote rule applied to the Senate rules too
  • Respect for the rule of law
  • 3
    It is not that I think you are wrong but this answer does not really explain why those things are important or how the actions(or inactions) were the respectful actions. If it was tradition for the senate to sacrifice a baby on its first day of session would that mean that tradition should continue to be followed and respected? In other words why should those traditions and other things that are being respected important? – SoylentGray Feb 9 '17 at 21:04
  • @DrunkenSanta9035768 Because respect for the rule of law and killing babies is exactly the same thing. Good grief – K Dog Feb 10 '17 at 13:14
  • @KDog - I get that but my hope was the comment would help the OP improve the answer I think this is the closest to being right, but it fails to meet the standards of a good answer. Being right is not enough you have to explain why – SoylentGray Feb 10 '17 at 15:31
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    Coincidentally (and unsurprisingly), this morning on NPR I heard someone describe the Democrats in the Senate as the ones who respect tradition, and the Republicans as the ones ignoring it. – stannius Feb 10 '17 at 22:08
  • @user11168 are you ready to retract your statements now? – stannius Apr 6 '17 at 21:05

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