The real nuclear option: How health care could end

Jon Ward Contributor
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Fake nuclear option, meet the real nuclear option.

Republicans’ repeated talk of reconciliation as a “nuclear option” in health-care fight is a case of mistaken identity. The press, too, has incorrectly referred to reconciliation as a “nuclear option.” The use of reconciliation to fix another bill is within the law and has plenty of precedent.

The real nuclear option — the destruction of a filibuster in the Senate by a simple majority — is far off in the health-care fight, in process terms if not on the calendar. And were that point reached, it would go down as one of the most dramatic legislative and political fights in U.S. history.

Here’s how it would work: House Speaker Nancy Pelosi would have to overcome incredibly complex obstacles to get the original Senate bill passed through the House.

If that happened – and it’s far from a sure thing – the House would start work on a reconciliation bill that made some changes to the Senate bill.

After reconciliation passed out of the House, the legislation would move to the Senate, where several procedural questions would confront it — namely, does it have to come out of committee or can it go straight to the floor? — that would determine how fast it reached the floor.

Once on the floor, the reconciliation legislation would be given 20 hours for debate, according to the law, a parliamentary expert told The Daily Caller.

But Republicans could use procedural delay tactics to hold up the bill for a few days by offering a series of amendments. There is precedent for this as well: In 1995 Senate Democrats held up a vote for 59 hours through delay tactics before Republicans could end debate, according to the Senate library.

To end such a stalemate, however, Democrats might be tempted to do the unprecedented: overcome a filibuster and essentially change the Senate rules through a simple majority of 51 votes.

This is the same “nuclear option” that was proposed by former Senate Majority Leader Bill Frist, a Republican from Tennessee, in 2005, when the Bush White House was frustrated by Democrats blocking its judicial nominees.

Frist argued that because the Constitution gives the Senate “advise and consent” powers over presidential nominations, the body’s obligation to fulfill that duty could be used as justification for eliminating the filibuster in this area. Frist called it the “constitutional option.”

Sen. John McCain, Arizona Republican, led a group of 14 senators — seven Republicans and seven Democrats called the Gang of 14 — who blocked Frist from taking this action. Sen. Lindsey Graham, South Carolina Republican, was one of the lawmakers who said destroying the filibuster would destroy minority rights in the Senate.

Graham, during a TV interview on Sunday, said that if Democrats were to use the true nuclear option “it would be catastrophic for the Senate.”

“The minority’s rights would have been overcome by … rank partisanship at a time when the bill itself, the process led to it wasn’t so good,” Graham said on CBS’s “Face the Nation.”

“Please don’t do this. Just please,” Graham said to Sen. Evan Bayh, the Indiana Democrat who appeared with him on the show. “I will work with you to find a smaller bill that the American people feel more comfortable about.”

Bayh, who has argued in a New York Times op-ed that the number of votes required to overcome a filibuster should be reduced from 60 to 55, appeared to give the green light for using the nuclear option.

“That will be … a very interesting moment,” Bayh said. “I assume that our friends on the Republican side will think that they’ve been violated and people on our side will say, ‘Look, this should be about substance rather than form. We think it’s right for the American public.’”

There has been much talk recently about the role Vice President Joe Biden in all of this. The vice president is president of the Senate and could, in the event of a vote to invoke the nuclear option ending a filibuster with 51 votes, cast the deciding vote while presiding over the Senate from the chair.

But Biden is needed only if Senate Majority Leader Harry Reid, Nevada Democrat, can only get to 50 votes. Biden could also choose to sit in the chair for symbolic or political purposes.

Nonetheless, a request that Republican amendments be ruled “dilatory,” or meant to delay, would have to originate on the Senate floor and come from a senator. The chair, either Biden or another senator, could grant the ruling or deny it.

Either way, 51 votes are all that’s required to overturn the ruling of the chair or to uphold it when Republicans appeal the ruling. That is the nuclear option.

In that scenario, Republicans who pushed for the nuclear option in 2005 would have weakened grounds to protest the use of the tactic by Democrats.

Democrats would face the same problem if they pursued the strategy. They cried foul in 2005, and a chorus of their own words would be thrown back at them.

Reid, then the Senate Minority Leader, said in 2005 that the use of the nuclear option by the GOP would “do harm forever to this country and to this institution.”

Reid also said: “If ever there were an example of an abuse of power, this is it. The filibuster is the last check we have against the abuse of power in Washington.”

However, a GOP parliamentary expert on the rules of the Senate and House said that such an action could be plausible if it happened “late at night, after two days of nonstop deliberations.”

“They might be able to conceal its true import,” said the Republican expert, who asked to not be identified. “They would probably characterize it as merely allowing the majority to bring the question to finality, but in reality, it would have a greater long-turn impact on the institution.”

“That’s the one that worries me the most, as it would be an outright abuse of minority rights, and change the Senate forever.”