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McConnell Threatens to Go Nuclear All the Time If He Becomes Majority Leader

Senate Minority Leader Addison "Mitch" McConnell (R-KY) threatened to go "nuclear" in the future if current majority leader. Sen. Harry Reid (D-NV) goes "nuclear" and forces the Senate to vote on several pending presidential nominations. As usual, be careful what you wish for. You might get it. To this bit of wisdom, add the caveat that politicians rarely think further into the future than the next election. They should. Here is some background material on McConnell's comment.

The Constitution requires the Senate to "advise and consent" on many presidential appointments. At the moment, McConnell is threatening to filibuster any appointment Reid brings to the Senate floor. This threat has kept Reid from forcing a vote on numerous appointments, including some key federal judicial appointments. In most cases, McConnell has no problem with the education, employment history, or skills of the nominees. He just doesn't want the positions filled at all. One hot potato is the U.S. Court of Appeals for the District of Columbia, which gets to handle most cases involving the federal government. There are currently three vacancies on the 11-member panel. Of the eight sitting members, four were appointed by Republican Presidents (all by George H.W. Bush) and four by Democratic Presidents. If the Senate were to approve Obama's nominees, Democratic nominees would occupy seven of the 11 seats, and that is what McConnell is against, largely because so many cases involving government power and public policy come before the court. Also, the court is also seen as a farm team for the U.S. Supreme Court. Justices Ruth Ginsburg, John Roberts, Antonin Scalia, and Clarence Thomas all served on the D.C. circuit court before getting a promotion to the Supreme Court.

Now what exactly is this "nuclear" business? Changing the Senate rules to eliminate filibusters requires a 2/3 vote of the Senate, which in the current hyperpartisan climate is not going to happen. However, Reid could ask the President of the Senate, Vice President Joe Biden, to rule on whether the Constitution demands that the Senate vote on presidential nominees or whether the Senate has a third option in addition to approving or rejecting them, namely, doing nothing. Biden would then consult with the Senate parliamentarian, Elizabeth MacDonough, but ultimately it is his decision, not hers. If he decided that the Constitution requires the Senate to either approve or reject all presidential nominees, any Republican senator could object to his ruling, in which case the full Senate would vote on it. Given the Democrats' 54-45 majority (with the seat of the late Sen. Frank Lautenberg empty until the October special election), Biden would surely be upheld and the filibuster broken. Of course, this wouldn't change the Senate rules, but Reid and Biden could do this on every nomination from now on, de facto changing the rules without a formal vote to change them. This procedure is what insiders call the "nuclear option."

Another option would be at the start of a new Senate session to have some senator to object automatically adopting the old rules and insisting on starting with a blank slate. It is doubtful this could be done in the middle of a session, but in practice, if Biden and 51 senators decided to do it, there is little the minority could do to stop it.

Now back to McConnell's threat. Assuming Cory Booker (D) wins the New Jersey special election in October to replace Lautenberg, the Democrats will have 55 seats going into the 2014 election, so the Republicans would have to gain six seats to make McConnell majority leader. If they win those six seats, the Democrats will be in the minority and McConnell is thus threatening to take away their power to filibuster--not just on presidential appointments--but on everything. The first bill to come up in Jan. 2015 would probably be to repeal Obamacare. But even if the Democrats couldn't filibuster the bill, Obama would veto it, so McConnell's threat wouldn't mean anything until Jan. 20, 2017, at which time he is hoping for a Republican President and a Republican majority in the Senate. That would change everything. It would turn America into a democracy, where the majority ruled, a hideous thought in Washington.

But here is what McConnell is forgetting. It is true that the Republicans have a decent shot at picking up six Senate seats in 2014. The Democrats are defending open seats in Iowa, Montana, South Dakota, and West Virginia and could easily lose all of them. Incumbents Mark Begich (D-AK), Mark Pryor (D-AR), Mary Landrieu (D-LA), and Kay Hagan (D-NC) are all facing uphill battles. Still, to win six of the eight means the Republicans need strong candidates and a lot of luck. But it is possible.

Now here's the rub: 2016. Just as 2014 is a terrible year for the Democrats because it is the echo of 2008, when weak Democrats rode into the Senate on Obama's coattails, 2016 is the reverse. It is the echo of the year when weak Republicans swept into the Senate in the Republican wave of 2010 because there was no presidential election and minorities and young people didn't bother to vote. In 2016, they will all be out in force, and if the Democratic nominee is a woman (yes, Hillary, you, or if you are not interested, maybe Elizabeth Warren), turnout will be record breaking. Among other Republican senators from blue or swing states up in 2016 are:

• Mark Kirk (R-IL)
• Chuck Grassley (R-IA)
• Roy Blunt (R-MO)
• Rob Portman (R-OH)
• Pat Toomey (R-PA)
• Kelly Ayotte (R-NH)
• Marco Rubio (R-FL)
• Richard Burr (R-NC)
• Ron Johnson (R-WI)

All of these could be Democratic pickups in 2016, leaving McConnell again in the minority after 2017. We will examine these races later on, but for the time being, just a few comments on a couple of them. It is widely suspected that after Obama's presidency is over, he and Michelle will retire to their home state of Illinois, where Sen. Mark Kirk, who recently suffered a stroke, is up for reelection. Many insiders expect Michelle Obama to run for Kirk's seat, in which case she will be the overwhelming favorite in such a blue state. Could the wife of a sitting President run for the Senate (yes, Hillary, you again)? Grassley is widely expected to retire, giving the Democrats a clear shot at taking back his seat. Toomey is a bad fit for blue Pennsylvania and is likely to be defeated. If Rubio runs for President, he may have to give up his shot at reelection, although he may be able to postpone a decision until the primaries are over.

In short, McConnell's threat to end the filibuster is just hot air. While he might become majority leader in the period 2015-2016, everything he gets through the Senate will be vetoed by Obama and after 2016, the Republicans are very likely to be in the minority again, even if they have a hair-thin majority from 2015 to 2016. If McConnell does become majority leader during 2015-2016 and really does eliminate the filibuster by going nuclear all the time, he still won't get any laws passed or repealed but he will have created a strong precedent for the Democrats to continue going nuclear starting in 2017, when they will probably be back in charge.