The video below stars then-Senator Barack Obama, Hillary Clinton, Chuck Schumer, Joe Biden and Harry Reid. In 2005, the Senators were piling shame on Republicans for using Reconciliation, also known as the Nuclear Option. Note that Republicans DID NOT use Reconciliation. The video follows some history on Reconciliation and the Nuclear Option.
I pray God when the Democrats take back control we don’t make the kind of naked power grab you are asking. ~ Senator Joe Biden 2005
While researching Senate Rule XXII, cloture, filibusters and Reconciliation (nuclear option), I found a long essay which says Rule XXII is not what the Founders had in mind:
Rule twenty-two lends
itself to criticism just in its very nature. The idea of a
supermajority being needed in order to do the business of the country
upsets a lot of reformers who wish to see what the founders pictured: a
majority driven legislature.
A vital note about Reconciliation, the Nuclear Option, comes from The Snooper Report, which reminds us that the only time Reconciliation can be used is in passage of a budget bill. The health care bill is not a part of a budget bill…yet. Here’s how that will work:
Congress includes reconciliation instructions in the budget. Those
instructions direct certain committees — say, the Finance Committee and
the Health, Energy, Labor, and Pensions Committee — to produce
health-reform legislation hitting certain spending targets by a certain
deadline. Once finished, the legislation is tossed back to the Budget
Committee, which staples it together into an omnibus bill and sends it
to the floor of the Senate for 20 hours of debate followed by an
Senator Robert Byrd has a “rule” named after him – The Byrd Rule. The question is, will the Byrd Rule rule when it comes to Obama’s health care?
The Byrd rule states that legislation is unfit for reconciliation if
it “produce[s] changes in outlays or revenue which are merely incidental
to the non-budgetary components of the provision.” I asked Jim Horney, a
budget expert at the Center for Budget and Policy Priorities, how you
define “merely incidental.” And what, exactly, is a “provision”?
He sighed. A provision, he said, is “not defined anywhere. It
goes well below a title or section of a bill and even below a paragraph.
But exactly what it is nobody knows.” And the Senate rules offer no
more clarity on the definition of “merely incidental.” Asked if anyone
had developed an accepted meaning, Horney seemed almost apologetic.
“No,” he said. “Absolutely not.”
The matter is not simply academic: The Byrd rule allows senators
to challenge the acceptability of any provision (undefined) of a
reconciliation bill based on whether or not its effect on government
revenues is “merely incidental” (undefined). Thus, if you enter
reconciliation with a health-reform bill, it’s not clear what’s left
after each and every provision — however that is defined — is
challenged and a certain number of them are deleted altogether: the tax
portions, certainly. And the government subsidies. But is regulating
insurers “merely incidental” to government revenues? How about reforming
hospital delivery systems? How about incentives for preventive
treatment? Or the construction of a public plan? An individual mandate?
A supermajority vote of 60 was needed until 1975, under a Republican President and a Democrat Congress holding the majority in both the House and the Senate: Source.
liberal Senate majority, determined not to be blocked by endless
argument over legislation in a period of economic crisis, last week
approved a compromise that achieved the first new limitation on debate
since 1959. A filibuster will be choked off if 60 Senators
(three-fifths of the total membership) vote to do so. That is seven
less than the number (two-thirds) that had been required under the
Senate’s celebrated Rule 22, assuming the entire Senate was present and
The fight was led by Democratic Senators
Walter Mondale of Minnesota and James Pearson of Kansas, with an
invaluable assist from Vice President Nelson Rockefeller, whose
partisanship as presiding officer enraged his conservative critics….
conservative Senators angrily assailed Rockefeller for this high-handed
tactic, Rocky was technically right. The Senate rules specifically
permit the presiding officer to ignore a parliamentary inquiry when he
believes it is being used as a dilatory tactic.
In 2005, when Democrats threatened to filibuster Bush’s judicial nominations, Senator Bill Frist suggested that a filibuster on judicial nominees was inconsistent with the constitutional grant of power, and have VP Dick Cheney rule a simple majority was all that was needed to seat the nominees. Other events intervened and what was to be known as the Nuclear Option was not used.
The Senate’s rules have allowed unlimited debate, or filibusters, since
1806, when senators dropped a rule that allowed a majority of the Senate
to put an end to discussion and call for a vote. For the next 111
years, there was no way to stop a filibuster once it had started.
But in 1917, when filibusters were blocking Woodrow Wilson’s plans for World War I,
the Senate adopted Rule XXII, which allowed senators to end a filibuster
by a two-thirds vote on a motion to cut off debate — a procedure
In 1975 the Senate amended Rule XXII so that cloture required, in most cases,
the vote of not two-thirds but rather three-fifths of the senators. In
today’s 50-state, 100-member Senate, that means it takes 60 rather than
67 senators to put an end to most filibusters.
The Founders did not “found” the filibuster.
There, however, is no
constitutional framework that says that senators should not have the
right to unlimited debate. But, the filibuster which permits a small
minority and even one Senator to stop a piece of legislation, was not
intended by the framers at all. In fact, it has been argued by some
that because the Constitution does lay down the times when a
supermajority is needed, (e.g. 2/3 vote for convicting an impeached
president and for signing treaties), therefore, only a majority should
be needed to pass any legislation. This is further backed up by the
Supreme Court Decision in United States v. Ballin, 1892.
In this case,
Justice David Brewer, speaking for the majority says, “the general rule
of all parliamentary bodies is that when a majority is present, the act
of the majority of the quorum is the act of the body. This has been the
rule for all time, except so far as in any given case, the terms of the
organic act under which the body is assembled have prescribed specific
What is cloture? In
simple terms, it is the ability of a supermajority to shut off debate
thus ending a filibuster. Any senator may file a motion of cloture
providing that sixteen senators have signed it. Two days after a
cloture motion is presented to the presiding officer, it is available
for a vote one hour after the senate convenes. After cloture has been
invoked, the Senators have thirty hours to debate, add amendments, and
raise points of order . Once the thirty hours are completed, a vote on
the pending legislation will be taken. Also it is important to note
that once cloture is invoked, senators are only allowed to introduce
Cloture has not always been like this. When rule twenty-two was adopted
in 1917, it took 2/3 of the Senate who was present to vote for cloture
providing there was a quorum. In 1949, rule 22 was amended to state
that 2/3 of the entire senate, or 67 members were required to vote to
end debate. In 1959, rule 22 was amended again lowering the required
number of senators to 2/3 of those who were present and voting. In
1975, cloture was lowered to 3/5 of membership or 60 members to vote for
it. Since the drop in the number of members needed to invoke cloture,
cloture votes were twice as successful then in the period from 1959.
The other major reform
that took place in cloture was the time allotted to debate after cloture
was invoked. Originally rule 22 never specified the amount of time
that was permitted for debate after cloture was invoked, senators began
to exploit the rule in the late 1970s. They started what became known
as the post-cloture filibuster, where after debate had been supposedly
ended, they would continue to tie up the floor with more debate,
amendments, and points of order. For example, Senator X would have
control over the floor and ask for every amendment to be read, despite
relevance or necessity. This post-cloture filibuster would eat up a
large amount of time.
Thus, in 1979, the
Senate amended rule 22 to state that post-cloture debate would be
limited to one hundred hours or one hour per Senator. The only problem
with this reform was that the one hundred hours did not include points
of order or readings of amendments, so the post-cloture filibuster still
worked in delaying the passage of a bill. Again in 1986, the senate
voted to amend rule 22 to limit post-cloture debate to 30 hours
including all points of order. This recent amendment has pretty much
eliminated the post-cloture filibuster.
This is what happens when we fool around with the original intent of the Founders.