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The Democrats' nuclear option in reconciliation

Get ready for the new nuclear option.

You may remember the old version, legislatively speaking, which came up during the George W. Bush-era controversy over filibustering judicial nominees. The nuclear option was the notion of moving to change Senate rules on the filibuster by a simple majority vote. Think ending a filibuster is hard? That takes only 60 votes. Changing Senate rules ordinarily takes 67.

The idea behind the nuclear option was to lower that threshold: The Senate majority leader would seek a parliamentary decision on whether the filibuster is permissible in the case of judicial nominees. If the parliamentarian determined a filibuster was allowed, that ruling could be appealed and overturned by a simple majority.

This was back in the days when Democrats clung to the filibuster as a bulwark against an overreaching majority and Republicans proclaimed the sanctity of the majority vote. Thankfully, due to the intervention of the bipartisan Gang of 14 senators, the trigger on the nuclear option was never pulled.

Soon, though, the itchy fingers may belong to Senate Democrats. If Democrats choose, as seems inevitable, to try to pass changes to the health-care plan under the rules of reconciliation, only a majority vote will be required. But that's not the nuclear option, despite some Republican rhetoric to that effect. Under reconciliation procedures, Republicans could not filibuster the measure. But they could offer amendments. Unlimited amendments. Senate Democrats already have the historical records handy: 58 votes on the Contract With America cuts in 1995, and 44 votes on the Bush tax cuts.

Here is where the nuclear move comes in. If Republicans exercise their prerogative to propose amendments and show no signs of quitting, Democrats could use the nuclear option to make them stop. After some number of amendments, the majority leader or another Democrat could seek a ruling that the amendments had become dilatory and abusive. If the parliamentarian were to disagree, whoever is chairing the Senate at that time could overrule him. Republicans could appeal that ruling. Democrats could move to table the appeal, essentially upholding the decision that no additional amendments would be allowed. And -- this is the important part -- that would only require a majority vote.

As with all nuclear strikes, this one could have devastating consequences -- for the ability of the Senate to get anything else done this year. Perhaps Republicans will blink first. But having a weapon in your arsenal always means there is a risk it will be used.

By Ruth Marcus  | March 3, 2010; 11:36 AM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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Comments

Uh, there's nothing "nuclear" about having the Senate parliamentarian rule that dilatory and abusive amendments are, in fact, dilatory and abusive. It's written into the rules of the reconciliation process. I'm astonished at the sheer ignorance on display on the Post editorial page about the basic rules under which Washington operates. You have George Will implying that the filibuster is somehow written into the Constitution, you have Orin Hatch pretending that reconciliation somehow violates the rules of the Senate, and you have Marcus arguing that the Senate parliamentarian simply doing his job is somehow going "nuclear." Isn't it the job of this paper to actually inform its readers of the facts? Marcus, Will, and Hatch need to go read Ezra Klein and then come back and apologize.

Posted by: steveandshelley | March 3, 2010 12:08 PM | Report abuse

Here's an idea for a column: see if you can get anyone in the White House to explain why Obama opposed the nuclear option in the recent video tape seen on the Internet.

I know there will be some BS twisted rationale; I'm just curious to see how ridiculous it will be.

Posted by: Curmudgeon10 | March 3, 2010 12:17 PM | Report abuse

http://www.breitbart.tv/obama-american-agenda-flashback-dems-should-not-pass-healthcare-with-a-50-plus-1-strategy

Obama lied and the democRATS died!

Posted by: cschotta1 | March 3, 2010 12:23 PM | Report abuse

I appreciate the premise of this comment -- that partisanship becomes more rancorous and paralyzing when one side or the other disregards precedent and tradition in favor of political or legislative gain. But it seems to me that in this case Republicans would be the ones breaking precedent by offering amendments ad nauseum to a reconciliation bill. So charges of partisan escalation should properly be levied against the Republicans in this case, not with Democrats for taking measures necessary to head off these guerrilla tactics.

Posted by: dollarwatcher | March 3, 2010 12:38 PM | Report abuse

Source: Politico
________________

Harkin: Reconciliation is a go

Sen. Tom Harkin told POLITICO that Senate Democratic leaders have decided to go the reconciliation route. The House, he said, will first pass the Senate bill after Senate leaders demonstrate to House leaders that they have the votes to pass reconciliation in the Senate.

Harkin made the comments after a meeting in Senate Majority Leader Harry Reid's office including Harkin and Sens. Baucus, Dodd, Durbin, Schumer and Murray.

When asked whether the leaders had made the decision, Durbin said: "We are moving ahead with a version of the health care reform bill that we believe has a good chance of passing both the House and the Senate."

He then put the onus on House Speaker Nancy Pelosi to signal whether she can provide enough votes to pass the Senate bill, followed by a package of fixes through reconciliation.

"The first step is with Speaker Pelosi and so I will let her decide what it takes in the House," Durbin said.

Reconciliation "has always been an option. But she has to make her own decision on what it takes to enact this in the House," he added.

Durbin said Democrats are "coming to closure" on legislative language to send to the Congressional Budget Office for a cost estimate -- a step that can take weeks. "It has not been sent yet, but we are hoping it can be sent soon."

It remains unclear what kind of guarantee the Senate can provide to the House that the upper chamber will make fixes to the bill, Durbin said.

"I don't know what the gesture will be but it will be a convincing gesture," he said

Posted by: omaarsblade | March 3, 2010 12:45 PM | Report abuse

Dear Ruthie,
You say that: "As with all nuclear strikes, this one could have devastating consequences -- for the ability of the Senate to get anything else done this year."
What do you mean, "anything else?" Without health care, Obama and the Dems won't get anything at all done this year.

Posted by: zipflock | March 3, 2010 12:50 PM | Report abuse

Been wondering about this scenario: what if the House passes the Senate health care bill and a bill containing the changes to the Senate version to go to the reconciliation process, but then the Senate does not pass the house bill.

Could this scenario happen or does the House have a protection mechanism? If this situation does occur, would Obama sign the unmodified Senate bill stating any bill is better then no bill?

Posted by: bostonjake | March 3, 2010 1:00 PM | Report abuse

steveandshelley, hear, hear! One would think that the predominant newspaper in our country's capital would be able to educate citizens on Civics 101, aka, how the government works, instead of echoing the misconceptions, "common sense" (that often is wrong), and outright deceptions that are being tossed around.

Posted by: hitpoints | March 3, 2010 1:01 PM | Report abuse

To pass anything in the Senate, other than specific situations that the Constitution lists, takes a majority vote. PERIOD.

There is nothing drastic about passing legislation with a majority vote. That is what the Constituion requires. The 'nuclear' option that the Republicans were discussing back when they had the power, was to modify the rules of the Senate. No such thing is being considered now.

So, let the issue come to a vote.

Posted by: AMviennaVA | March 3, 2010 1:23 PM | Report abuse

The Democrats are doing pretty well in getting the Republicans to back down -- yesterday it was Bunning, before that Shelby. The Republicans should watch out; the Democrats might get to like it.

Posted by: jonawebb | March 3, 2010 1:27 PM | Report abuse

You should be ashamed that you even wrote this.

Do you have fact checkers or do you assume the talking point Republicans feed you are valid?

There is nothing "nuclear" about something that has been done multiple times. It is darn near an oxymoron. Repeatable Nuclear Option.

I hope you realize this article makes you look like a Republican shill. Where was your outrage when Republicans used reconciliation?

You can do better.

Posted by: justmy2 | March 3, 2010 1:46 PM | Report abuse

Hmm, interesting - all over the web there are videos after videos demonstrating Nobama, Reid, Pelosi, Dodd, Schumer, Boxer...all condemning such use of reconciliation as an abuse of power, an afront to the constitution, yada, yada, yada...and what is it they are now saying?
Even Senator Byrd - who wrote/sponsored this legislation is stating that in such an instance - engaging 1/6th of the economy - reconciliation was not intended.

So maybe while Nobama-Reid-Pelosi are ignoring 60-70% of the people in the USA and their wishes - perhaps they may go back and view those videos of those speeches they passionately expressed in 2005..or perhaps listen to the wise wisdom of the elder statesman in Bryd...in otherwords...perhaps they may LISTEN to themselves? For if not - they will be remembered passionately come November. This is no longer about 'reform' of healthcare - but a power grab by the dems to enlarge government - stuff we can no longer afford.

Posted by: short1 | March 3, 2010 1:47 PM | Report abuse

If you want to see Obama’s true intentions, watch this Brand New, Viral

OBAMACARE - YEAR IN REVIEW video: http://www.youtube.com/watch?v=6Rv7aW3NF7w

This Hilarious and Shocking Video provides a Fast-Paced Look at the No-Lie-Too-Big, Socialist Ideologues Who Now Run Our Country.

MUST WATCH! 

Posted by: CommieBlaster | March 3, 2010 2:02 PM | Report abuse

Some repugnacants are saying that reconciliation shouldn't be used on
'big" bills. Well that is exactly where it should be used. The more important a bill is, the less likely it is to garner 60 votes. The repugnacants have held up for a year this bill which is of very great importance to the people, whether they know it or not.

I will go a step farther and say that to require more than a simple majority is un-American and certainly un-democratic.

Posted by: democratus | March 3, 2010 2:11 PM | Report abuse

Marcus is essentially making the claim that
there can be no reconcilation, since anyone can stop it by presenting an infinite number of amendments. The nuclear fallout she is worried about is misplaced--if this behavior is allowed, then it puts into effect a permenent supermajority requirement. If you want to see what comes from this, look at California (or 17th centry Poland or 18th century France). Hamilton warned about this in the Federalist papers.

Posted by: garbage1 | March 3, 2010 2:25 PM | Report abuse

This has to be the most ridiculous circus ever proposed. The house democrats would be foolish to approve the Senate bill because then Obama could just sign it. All over and done with, and Obama is so narcissistic that he just might do that. And I dont see how the Senate reconciles something that hasnt been approved first by the house, since the constitution requires all spending bills to originate in the house.
If Obama and the Democrats were listening to the voters, health care legislation would have been dead last summer and the government could be correcting real problems which they created like immigration laws and inheritance tax laws. But they'd rather pretend that the anti-Bush tide which swept them into office was a pro-big government tide, which it most certainly was not. Witness VA, NJ, and MA ballot box results.

Posted by: bruce18 | March 3, 2010 3:02 PM | Report abuse

Funny, I thought it was called the NUCULAR option.

Posted by: seve2yoo | March 3, 2010 3:05 PM | Report abuse

Why is it a "nuclear option" when the Democrats use it for health care reform, but not a nuclear option when Republicans use it for tax cuts for the wealthy?

Posted by: psp747 | March 3, 2010 3:26 PM | Report abuse

My take on the "nuclear option" is simple. For years we have seen the Republicans act like a gang of street thugs in congress. They got their way, every time, through whatever tactics were necessary. The Dems just rolled over and let it go. Now I want to see the Democrats do the same thing. Any move, any tactic, any loophole, whatever it takes to move legislation forward.

Posted by: gposner | March 3, 2010 3:27 PM | Report abuse

The American people are going to use the "nuclear option" on the Democrat Party in November.

Posted by: badgerburg | March 3, 2010 3:41 PM | Report abuse

Ms. Marcus

I can not believe you have fallen for the GOP talking points. Let me repeat:
RECONCILIATION IS NOT THE NUCLEAR OPTION!!

The nuclear option was the threat to remove the filibuster entirely. Reconciliation is a parliementary procedure that allows a majority vote. Here are some of the items passed through reconciliation in the past:

-Medicare, Welfare reform, tax cuts...just to name a few.

Posted by: jjj141 | March 3, 2010 3:51 PM | Report abuse

if the Republicans next year gain control of the house and/or senate...
will the girly men dems cry when they do what they are now doing...
well...

Posted by: DwightCollins | March 3, 2010 4:04 PM | Report abuse

Keep America beautiful. Shoot a Republican today.

Posted by: wrw01011 | March 3, 2010 4:24 PM | Report abuse

Curmudgeon10 wrote: "Here's an idea for a column: see if you can get anyone in the White House to explain why Obama opposed the nuclear option in the recent video tape seen on the Internet."

Probably for the exact same reason Republicans opposed pay-as-you-go, until they could use it for their own agenda. Do you imagine that asking these sorts of rhetorical questions furthers the public debate, or makes you appear wise? Everything out there can be used to your benefit or to your detriment, and it is human nature to support things when they benefit you, and oppose them when they do not. It's the same reason people think all those speed-demons deserve speeding tickets, until it's you that gets pulled over. Big mystery!

Posted by: gasmonkey | March 3, 2010 4:30 PM | Report abuse

Ok, so if the President is a hypocrite for opposing reconciliation in the past when the Republicans used it for the Bush tax cuts, then doesn't it also follow that Republicans are now hypocrites for opposing the President's use of Reconciliation? Give me a break!

Posted by: marcusoliver2008 | March 3, 2010 4:37 PM | Report abuse

It's funny, but when there was a Republican in the White House, all these Republicans were saying that out of respect for the office of the President Congress OWED him a straight up-or-down vote on his priority legislation.

No gamesmanship, no fillibustering, just a straight up-or-down majority vote.

Now that there's a Democrat in the White House, they're completely opposed to the strategy they once vowed was the only fair thing to do!

Posted by: gasmonkey | March 3, 2010 4:54 PM | Report abuse

Puleeze the GOP didn't have any problems with the public suffering through the nuclear fallout of the Bush tax cuts.

Posted by: snake_taylor | March 3, 2010 5:18 PM | Report abuse


obama says the nuclear option should never be used by anyone...except himself.

obama is a pathetic, one-term teabagger.

Posted by: ItsOver2 | March 3, 2010 5:47 PM | Report abuse

Ruth,

Isn't redefining words to obfuscate meaning or to reduce and eliminate ideas and their meanings, in short, to mean the opposite called Orwellian?

Considering that reconciliation has been employed repeatedly in the prior 8 years, and "the nuclear option" has never been used, why have you redefined the meaning of reconciliation?

Posted by: boscobobb | March 3, 2010 6:10 PM | Report abuse

You are just really, really wrong, Ruth. See "nuclear option" at Wiki or see Ezra Klein in Outlook. The "nuclear option" is when you call a "Point of Order" on the Senate floor and change the rules of the Senate after that. Only know about it because of Judicial nominees in Bush Admin. which is a totally different animal. There is nothing "nuclear" about overuling "germane amendments". See Brookings.edu. about Reconciliation. This story is so misreported.

Posted by: carolerae48 | March 3, 2010 6:16 PM | Report abuse

Obama inherited terrible economic mess from Bush.

So he spent the entire year on fixing the Health care.

After the Massachusetts election and Scott Brown victory, he decided to refocus on THREE letter word JOBS. He said so loudly in the State of the Union speech.

So he is devoting the full force of his administrations and his party on Health Care reforms.

Under normall circumstances, a person behaving this foolishly would be called, aptly, FOOLISH.
Not Obama. He is the smart guy; a Harvard Law Graduate, a guy with his fingers on people's pulse.

Reminds me of another GREAT ONE from Roman History. He was known for fiddling while his empire was burning.
Could the current ONE be a reincarnation of Nero? Just a thought.

Posted by: vatodio | March 3, 2010 6:35 PM | Report abuse

Gee I thought only FOXNews was throwing out the term 'nuclear option'.

Posted by: Emmetrope | March 3, 2010 7:29 PM | Report abuse

All the interviews, the speech before Congress, the "summit", all of this. I have never seen such a struggle to pass something. The Iraq wars were not this difficult to agree upon, neither one. The titanic effort that the President has displayed and it comes down to a Parliamentary move? All this shows to me a President completely out of touch, concerned only with his win column. A President obsessed with an unpopular, expensive, dangerous, crooked program that will bankrupt this Nation all by itself. Mr. President I ask you to take a step back and think. At what cost have you gone this far? What cost to your party, your popularity, your future?

Posted by: bobbo2 | March 3, 2010 7:30 PM | Report abuse

Funny thing.
I was just downloading the latest song from RightieTunes.

(Beethoven's 5th Symphony)
Fear fear fear fearrrrrrrrrrrrr
Fear fear fear fearrrrrrrrrrrrr

fear fear fear Fear Fear FEAR FEARRRRRRRRRRRR

Posted by: numbers28 | March 3, 2010 8:05 PM | Report abuse

Democrats may feel confident moving forward with reconciliation and no Republican support. But not having the support of America, and still moving forward is not bold, but abusive.

Posted by: JohnnyGee | March 3, 2010 8:13 PM | Report abuse

The Dims could have done this months ago, but hoped they could get their own party in line by buying votes and twisting arms. When that didn't work, they turned to blathering and obfuscation. Now its time to resort any and all means available.

Let's face it, their ends, i.e. bankrupting the country and gutting the quality of healthcare for the middle class, are just too important to their agenda to abandon.

Posted by: magellan1 | March 3, 2010 9:28 PM | Report abuse

"Some repugnacants are saying that reconciliation shouldn't be used on
'big" bills."

No, let me explain this to you.

The argument against this is that reconciliation is only meant for financial bills.

This is not primarily a financial bill, this is a health care bill.

This doesn't really matter. As soon as the republicans take over in the fall, they'll undo it all anyway. It's like a big circle-jerk in the DNC.

Posted by: Ombudsman1 | March 3, 2010 10:14 PM | Report abuse

"Do you imagine that asking these sorts of rhetorical questions furthers the public debate, or makes you appear wise? "

Actually yes. It removes the idea that somehow Obama is any different than any other two-bit congressman from the middle of nowhere.

Your argument is essentially this:

"Shut up"

Sorry, but when the president will lie because it's convenient, that's big news. Surely he won't be shocked when people have no trouble lying about him, although he's given so many reasons to get him out of office, the truth suffices against him.

Posted by: Ombudsman1 | March 3, 2010 10:19 PM | Report abuse

It really is stupid for Obama to try to go down this path - it will start a war which will go on for a year.


Obama is intentionally trying to subvert the rules of the Senate - no matter what side of the aisle you are on.

Obama should look towards next year - when he will surely NEED the Republicans to govern. Obama has been acting as if he would have the 60 votes forever.


Well, if the Republicans capture the House, Obama really has a problem on his hands.

The Republicans, once in control of the House, can act to defund any government function that is involved in the implementation of the health care bill. That will halt it - if not immediately then by Oct 1 of next year. But then Obama has another problem: Impeachment - The Republicans will call this intentional breaking of the Senate rules as grounds for Impeachment - and they will impeach Obama.

Obama is not thinking ahead.


If Obama wants to get anything done over the next few year left in his term, he should start meeting the Republicans on middle ground immediately.

This is definitely NOT the way to start - if Obama thinks he is going to get any Republican cooperation later.

The next few weeks will set the tone for the rest of Obama's term. If Obama starts a war now, it will not be pretty.


Obama should drop this health care right now, and begin to reflect the new political realities he is faced with.


.

Posted by: 37thand0street | March 3, 2010 10:40 PM | Report abuse

Get your head out of the beltway! No major democracy tries to function with a supermajority requirement for everything. And look at the catastrophic mess in California, resulting in part from its limited supermajority requirements.

Once again, Marcus offers NO SUBSTANTIVE DEFENSE of the supermajority requirement. She offers only 2 things: (1) It has always existed, which is not an argument for continuing it and also ignores its perversion in recent years, and (2) crippling retaliation by the GOP, which ignores the epochal importance of heat care reform and naively supposes that anything else of substance will accomplished during the remainder of this toxic Congress in the months before the election.

Marcus should spend less time scouring the minutiae and more time looking at the big picture. And she should get her beltway-insider jerking knee under control. Is she a commentator or a parrot?

Posted by: uh_huhh | March 3, 2010 10:59 PM | Report abuse

Smell that fresh breeze of conservatism, should be in full gale by November.

Posted by: shukov | March 3, 2010 11:18 PM | Report abuse

37thand0street - Impeachment? You can't seriously think that the Republicans - if they managed to get a majority - would try to get themselves voted back out again so quickly.

You do realize that impeachment is for high crimes and misdemeanors, right? So, if the Senate leadership decides to use reconciliation to amend a bill (that it has already passed with 60 votes), HOW do you imagine that this is somehow a crime of the President's? (Even if it were a violation of Senate rules at all - if reconciliation is only used on the financial aspects of health care, then even by your definition, no rule is broken.)

A quick look at the Constitution should suffice to remind you that the Executive and Legislative branches are independent of each other - the President can urge, request, beg, hold his breath, whatever he wants - but HE cannot do anything to control how a bill is treated in the Senate. So what, exactly, do you propose he be impeached for (as far as I know, he hasn't lied in court about sex with interns).

You might also recall that Clinton seemed to be heading for a single term until Gingrich's overreaching helped him get reelected. A Republican victory this fall could potentially do the same for Obama if returning to power reminds voters of why they voted them out in 2006 and 2008.

Posted by: milo13 | March 3, 2010 11:26 PM | Report abuse

"

37thand0street - Impeachment? You can't seriously think that the Republicans - if they managed to get a majority - would try to get themselves voted back out again so quickly.

You do realize that impeachment is for high crimes and misdemeanors, right? So, if the Senate leadership decides to use reconciliation to amend a bill (that it has already passed with 60 votes), HOW do you imagine that this is somehow a crime of the President's? (Even if it were a violation of Senate rules at all - if reconciliation is only used on the financial aspects of health care, then even by your definition, no rule is broken.)

A quick look at the Constitution should suffice to remind you that the Executive and Legislative branches are independent of each other - the President can urge, request, beg, hold his breath, whatever he wants - but HE cannot do anything to control how a bill is treated in the Senate. So what, exactly, do you propose he be impeached for (as far as I know, he hasn't lied in court about sex with interns).

You might also recall that Clinton seemed to be heading for a single term until Gingrich's overreaching helped him get reelected. A Republican victory this fall could potentially do the same for Obama if returning to power reminds voters of why they voted them out in 2006 and 2008.

Posted by: milo13 | March 3, 2010 11:26 PM | Report abuse "

by not turning over his nobel prize money to the treasury, he has committed a high crime and misdeameaner...
that prise was awarded to the president of the united states, president obama...
and I don't see a bill approved by both the house and the senate that says he can dispose of that money...

Posted by: DwightCollins | March 4, 2010 6:27 AM | Report abuse

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