Should Senate Democrats Use the Nuclear Option?

di A. Altieri D’Angelo

Yes, if Republicans refuse to compromise.

President Joe Biden and Democratic Senators are fast approaching a day of reckoning. The President has an aggressive legislative plan that includes a range of proposals such as a $3.0T infrastructure plan, a voting rights act, gun control, and other initiatives. Unfortunately, Senate Republicans will not support any of these initiatives. And existing Senate rules require that almost all legislative proposals must garner 60 votes (referred to as the 60-Vote Rule or the filibuster) to end debates and vote on proposals. There are, however, two ways to overcome Republican opposition: use a Senate technique called the budget reconciliation process (the Process) or the Nuclear Option. (The President can also use executive orders to affect policy changes without any congressional approval. President Biden was able to extend the Obamacare enrollment period by several months using an executive order.)

The Process allows proposals that have a budgetary impact to be approved with 51 votes, not 60. The Senate approved Biden’s $1.9T Covid Relief Bill by using the Process. Senate Democrats have a one-vote majority since Vice President Harris, acting as President of the Senate, can cast the tie-breaking vote.

The Nuclear Option is, in essence, a parliamentary procedure that allows the Senate to override a standing rule of the Senate. In this case, it is the 60-vote requirement noted above. The Nuclear Option, if used, allows the Senate to move proposals to a vote with a 51% majority. (This change eliminates the advantage any Senate minority party has to block legislation.) 

Republicans and a few Democrats (including President Biden,  Senators Joe Manchin-West Virginia, and Krysten Sinema-Arizona) currently oppose using the Nuclear Option. They (the Anti-Nuclear Option Group or Group) argue that, although not required by the U.S. Constitution, it is a Senate tradition that fosters compromise. Senator Manchin has stated in recent weeks that he will not support the use of the Nuclear Option. President Biden, whose entire political career was in the Senate, has the same view. They believe compromise has been the hallmark of the U.S. Senate. The Senate is expected to act in a fair and balanced manner (and with minimal partisanship) when enacting national legislation. Eliminating the 60-Vote Rule would destroy that tradition. But the Group is also concerned with passing the bulk of the Democratic Party’s legislative agenda for the country’s good in the next several months. They know that in November 2022, the Senate and House’s control could pass to the Republicans; time is not on their side.

President Biden, Senator Manchin/Sinema, and other Senate Democrats hold different views on what each legislative package should include. For example, Manchin has indicated he wants to see a more narrowly focused gun control proposal; neither Manchin nor Sinema expressed any view regarding the recently passed House bill on voting rights. However, Senate Democrats and the President will develop a unified position on each separate legislative proposal and present such to Republicans. The Group will reach out to Republicans, but they are expected to fail as Republicans have shown no desire to support Biden. Democrats will be forced to use the Process for the infrastructure bill and will need to consider using the Nuclear Option for all other non-budgetary impacting proposals. The Group will most likely face its day of reckoning in 2021 regarding the use of the Nuclear Option. A failure to use the Option will cost Democrats control of the House and Senate in 2022 and the Presidency in 2024.

The Republicans have promised a scorched earth policy if the Nuclear Option is used. Senator McConnell, Republican Minority Leader, has stated they will cause the Senate to cease to function in every way. Is it realistic to fear the Republicans? Probably note. The American people, regardless of political views, expect action from their elected officials. If the Biden Administration passes laws that people (including Republicans) support, such voters will hold Republican politicians accountable for obstructing the Senate’s business.   

The U.S. Constitution requires majority rule in the Senate; there is no reference to a 60-Vote Rule. Both parties had taken advantage of this Senate tradition when they were the minority party. But its use has increased substantially in the last 10 years. The misuse of the Rule is now preventing the country from making strategic decisions on a wide range of issues, and time is running out for the U.S.

81.3M people voted for Biden and his agenda. They are anxious to see his plans implemented. They will support the use of the Nuclear Option if a compromise is not possible. The Anti-Option Group will need to bow to the will of the majority and use the Option.

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