The 2013 Reid Nuclear option and the current dilemma for the Democrats

I’ve seen a ton of chatter on political twitter about Harry Reid’s move to nuke the filibuster for Senate confirmations back in 2013, with his recent passing and the Democrats facing a similar dilemma with leadership trying to get the caucus behind a nuclear option to get voting rights legislation passed. I think discussion about that move often runs into the trap a ton of people seem to fall into with the filibuster.

Rules and norms don’t exist in a vacuum. People often talk about the long-view of filibuster rules as only what the backlash will be from the other party if the rules were changed. The problem is that there are things the government needs to do, and in a system like we have in the US where there are ways to grind everything to a halt, a change in norms needs to factor in not only how the political balance will shift but also what long-term effects the current status quo would be for essential government functions.

Back in 2013, the political precedent was set that filibustering judicial nominations could be the rule rather than the exception - or in other words that the minority party could blanket filibuster every single nomination. Even if we entertain the thought that protecting the filibuster for lower-level confirmations would have protected it for the SCOTUS when the GOP came back into power, that still leaves us in a dysfunctional place. If the norm had never been changed, the existing norm would have led to a perpetual state of federal court positions not being filled. If we just continued that until now, we almost wouldn’t have a federal court system anymore.

That’s basically where I think the focus should be in 2022. The truth is that carving out an exception to the filibuster that is narrowly tailored to voting rights won’t work. A future GOP majority is perfectly free to interpret the political precedent as “the majority gets to carve out whatever exception they want”. However that isn’t the central issue. The central issue is whether the Democratic voting rights proposals are an essential function of government and if there is no better way to enact them than to nuke the filibuster. Because if both of those things are true, the Democrats have no choice but to nuke the filibuster (or effectively change it so that it can’t stop their voting rights legislation).

It isn’t enough to say “the Democrats shouldn’t go nuclear now because the GOP will ban abortion in 2024”. For this to be a defensible position, one needs to explain the alternate path the Democrats could take.

Heck, why not eliminate the filibuster, get voting rights passed and then reinstate the filibuster?

Norms don’t mean shit anymore. Nuke the filibuster. If the Democrats are right - that Democratic policies and priorities are more popular than Republican ones - than this will be a big win in the long term, because they’ll be able to put into place popular policies that Republicans will be afraid to kill. If Democrats are wrong, then they lose, but that’s what happens anyway with the filibuster in place.

The filibuster should never have existed. A majority is a majority. The whole point of getting a majority - be it merely 50+1 or a massive 70-seat majority - is so you can ram your legislation through.

The only exception should be things that legitimately require much more than a mere majority, such as the conviction of an impeached president, or the impeachment of a Supreme Court judge.

I think the historical blame game is pretty silly – they started it! No, they started it! It was the Dems and Bork! No, it was Gingrich! Blah blah blah. It’s like some weird family feud.

I think we should go back to forcing politicians to stand in the chamber and speak for the duration of the filibuster. If they want the rest of us to suffer, they should too.

I think this missing one key part of the calculus (which I think also recommends killing the filibuster, or at least severely limiting it):

Democrats are at a competitive disadvantage in the Senate, and will be for a long time. Demographic trends will not save them as long as the main political divides are rural vs. urban/suburban.

So you have to weight the impossibility of passing anything (because you will never get 60 seats) with the impossibility of stopping anything when you don’t have the majority. If you truly believe that GOP policies are unpopular (which I tend to - the only popular thing they have proposed or passed in the last decade that I can recall is tax cuts) then you should nuke the filibuster and dare them to pass unpopular laws.

Because basically we have a system in place right now where no Democratic initiative will ever pass. The GOP has more then enough perfectly safe Senate seats to keep 41 Senators on board in opposing everything.

But I don’t think it’s going to happen as long as individual interests (Manchin, Sinema, a few others) don’t align with party interests. And if you look at the realigned map, this may be the Democrats high-water mark for awhile. So this is definitely the time to strike.

For example, if you assigned Senators based on the 2020 results, the GOP would have 50 Senators just from states Trump won by 1.3% or more. You could “split” the close states, but that doesn’t help because the Democrats would pick up one in NC, but the GOP would get one in WI, AZ, and GA. Obviously candidates matter, but this just points out that even with as polarizing a figure as 2020 Trump on the ballot, Democrats were damned lucky to get to 50. They won’t be holding seats in MT and WV for long.

So this is an example of a procedural solution that might work but misses the point.

What’s important is whether the senate rules allow for [insert basic govt function here] to be possible. If the talking filibuster would still allow that to be blocked, then it isn’t an effective reform.

The sooner the filibuster is gone, the better, and I don’t care why it happened or who did it. It’s ridiculous that a group of adult statesmen actually set up a rule that allows someone to do the equivalent of a toddler sticking his fingers in his ears and yelling, “Blah Blah Blah I can’t hear you saying anything I don’t like.”

I generally agree with you but the counterargument there is that we live in a post-truth era so the GOP wouldn’t actually be punished even if the laws they passed were unpopular.

They routinely take credit for Democratic laws that they voted against, when the funding comes to town, for example.

There’s a common thread that kind of assumes the Democrats are fucked no matter what… if there’s any truth to that at all, then they might as well go out and try to enact their policies much as humanly possible. At least then the country will be a bit better off.

Maybe. Things have certainly changed even since 2017/2018. But I do remember that they were unable to kill Obamacare due to that being an unpopular position (and John McCain really hating Donald Trump). I think it would be even harder to repeal now.

While the GOP has structural advantages they aren’t so overwhelming as to guarantee a permanent majority no matter what they do.

Basically what I’m saying is that the current re-alignment is such that Democrats will win narrow majorities when they are ascendant and the GOP will win larger majorities when they are ascendant (possibly even 60 in a wave election with the right seats up and the right candidates).

In such an environment the filibuster is a terrible obstacle for Democrats and only a minor burden to Republicans.

Then you add in that the one area where the GOP likes to make changes (budgetary items) is the one area where you don’t actually need 60 votes. They are perfectly happy keeping just about everything else the way it is, being conservative and all. Even better if they can use budgetary means to make existing government programs (EPA, IRS, etc) ineffective. Democrats have no such options to enact their policies.

What would a “No filibuster” GOP Senate do if they also had the House and the POTUS? Ban abortion nationally? Kill Obamacare? Gut the EPA? I feel like most of this (other than abortion) they are perfectly capable of doing just with the executive and reconciliation bills.

I know eliminating the filibuster is a good thing because Mitch McConnell really seems to have his pants in a bunch about it. The only time he isn’t 100% lying is when he’s complaining, and then it drops down to like 91-92%.

I see the “nuclear option” as essentially lying about the rules for political gain, which is a huge red flag because the entire body of law amounts to a set of rules. Respect for the rules is more important than improving voting rights in the election of 2022 or any other given year. If you want to change the senate rules do it directly or with a Constitutional amendment.

From what I can understand, it is the majority leader’s sole prerogative to force people to stand on the floor. He simply has to ignore them when they threaten a filibuster, and then move the vote up on the schedule.


What does “do it directly” mean? The Senate rules are not in the constitution, nor is the filibuster.

Amending the rules. There is a motion for that just like any other.


Right… that’s what the “Nuclear Option” is. Maybe I am misunderstanding you.

Incorrect. “Article I, Section 5, Clause 2 : Each House may determine the Rules of its Proceedings […]”


Right, I meant the specific rules about the filibuster (or any other rules) are not in the Constitution. Sorry for the poor phrasing.