With ‘Nuclear Option,’ No Such Thing as Half Pregnant

Nearly all Brown students are familiar with the concept of mutually assured destruction. Taught in even the most cursory of Cold War histories, this theory refers to a form of deterrence whereby the overwhelming and reciprocal threat of destruction posed by nuclear weapons will preclude their use by any belligerent. This is perhaps the paradigmatic representation of a Nash equilibrium: once both the U.S. and U.S.S.R. acquired nuclear weapons, neither hegemon had an incentive to deploy or disarm them.

So it is with the so-called ‘nuclear option’ – the proposition that the Senate can alter its Standing Rules (most prominently, Rule 22‘s provisions relative to invoking cloture and ending debate) at any time by simple majority vote. Both parties are armed, to the extent that over the long run they alternate time in the majority. Indeed, threatening to change cloture rules by majority vote has long since been a favored point of leverage for Democratic and Republican majorities frustrated by minorities’ increasing use of the filibuster. However, since this game is played over multiple iterations, the implications of the filibuster’s destruction would be equally catastrophic for both parties. Consequently, the threat of the ‘nuclear option’ has never turned into its incidence because both parties – knowing they could be in the minority soon thereafter – were disincentivized from utilizing it.

That is, until this week. The Senate voted 52–48 on Thursday to alter its rules for invoking cloture on certain judicial and executive branch nominations; this vote did to the ‘mutually assured destruction’ theory what the Cuban Missile Crisis would have had no accord been reached. The vote, of course, was in direct contravention of Rule V, which provides that “[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” Since invoking cloture on a rules change according to the Standing Rules in turn requires a two-thirds majority, the Senate did, in fact, “break the rules in order to change the rules.” While time and again the mere threat of such a rules change has resulted in a compromise on stalled nominations – including most recently, the nominations of Richard Cordray and members of the National Labor Relations Board and, during the Bush administration, those of a number of appellate court vacancies – Senate Republicans’ filibusters of President Obama’s D.C. Circuit nominees have apparently pushed Democrats over the edge.

Some of its proponents prefer to call the nuclear option the ‘constitutional option.’ Since Article I §5 provides in part that “[e]ach House may determine the rules of its proceedings,” proponents of this theory assert that the Senate can exercise its constitutional prerogative equally with the House and alter its rules at any time by majority vote. This proposition is false, though, because as both other constitutional text and historical practice demonstrate, the Senate is a continuing body whose Standing Rules are binding from one Congress to the next. Most importantly, by establishing the tripartite class system in which only one-third of Senate seats are up for election every two years, Article I explicitly contemplates a composition of differing endurance. As a result of this division, the Senate has maintained a quorum of fifty-one senators since its inception and is thus a continuing body. By contrast, every member of the House is elected biennially, at which time that body’s composition is wholly dispensed of and reconstituted.

More troubling, the Senate’s decision will be without formal consequence because the question of its rules constitutes a nonjusticiable political question. “Prominent on the surface of any case held to involve a political question,” the Court explained in Baker v. Carr, “is found a textually demonstrable constitutional commitment of the issue to a coordinate political department…” In (Walter) Nixon v. United States, the Supreme Court rejected a procedural challenge to the Senate’s impeachment of a federal judge because the Constitution makes an explicit textual commitment to the Senate that invests it with “the sole Power to try all Impeachments.” This is in contrast to Powell v. McCormack, in which the Court overturned the House’s exclusion of a member on the grounds that the Constitution sets forth specific, justiciable standards for exclusion – namely age, length of citizenship, and residency. Because Article I §5 explicitly and without qualification commits the rule-making power to each house of Congress, the validity of such rules – and thus, whether the Senate is enforceably conceived as a continuing body – ought be governed by Nixon and not McCormack.

It is true that the Senate left the three-fifths threshold for cloture on Supreme Court nominations unchanged. The precedent of changing the rules by mere majority vote, however, renders infirm the sustainability of that distinction: when it comes to “breaking the rules to change the rules,” there is no such thing as half pregnant. Once the cloture threshold is diminished for rules changes for the purpose of executive branch and lower court judicial nominations, future majorities will not hesitate to dilute it for other purposes. Consider the position of even a responsible future majority: confronted with this precedent, is there any meaningful distinction to be drawn that would render it inapposite in some future circumstance of subjective imperativeness? It is not hard to imagine a scenario where excessive obstruction of Supreme Court nominees would compel a frustrated majority to seize upon it, to say nothing of a controversial policy change.

I am a firm believer that the Constitution allocates the appointment power primarily to the executive and that recent senates have exceeded their limited powers of advice and consent. Objections to executive and judicial branch nominations are only legitimate when they are qualification-based, since the former assume and discharge the president’s independent executive power and the latter are intended to indirectly reflect the ideological composition of those who appoint them. If considering only the ends achieved by the Senate’s decision, then, I might well be contented. However, the means by which the Democratic majority accomplished this will exact future costs far greater than their present benefits. Instead, altering rules for cloture should only have been effectuated in accordance with the Standing Rules. “Filibusters are a necessary evil…which must be tolerated” the late Senator Robert C. Byrd presciently explained, “lest the Senate lose its special strength and become a mere appendage of the House of Representatives.” Unfortunately, the Senate’s myopic decision will go a long way toward doing precisely that.