During Harry Reid's 80-minute valedictory following 30 years in the Senate, few Republicans came to listen to him.
In an institution which, during my service as a staffer there, was viewed a "collegial," Reid was -- not so secretly -- regarded by many of his colleagues as vile and loathsome. And the cornerstone of his legacy was his decision to achieve short-term goals by using a fraudulent artifice to blow up the Senate rules illegally. This artifice has come to be known as "the nuclear option."
As recently as five weeks ago, Reid was urging Senate Democrats to expand the nuclear option -- confident that they would never again lose control of the Senate and the White House. And, as late as November 8, Republicans were shivering in terror at that prospect, knowing what it would mean: that a Democrat Senate with no rules would enfranchise immigrants and felons in a way that would irrevocably alter the American electorate.
Well. That was then; this is now.
We are now seeing the beginning of what will, no doubt, be a spate of articles urging Senate Republicans to use any fraud necessary to cram through their agenda. These articles will have a few things in common:
First, they will be chock full of factual inaccuracies. One of them stated, incorrectly, that Reid invoked the nuclear option in "2015" when he was, supposedly, "Majority Leader."
The second reality is that these articles will be written by people who know nothing about the Senate rules. That same article assumed that there was some "rule" that allowed non-Mr.-Smith-Goes-to-Washington filibusters.
There is none. In fact, as Howard Baker showed in 1982 (to my disadvantage), it is possible to force senators to stand and talk by a variety of means -- including a vigorous enforcement of the two-speech rule. To the extent that issues on which cloture has been filed are set aside for the consideration of other business, it is for the convenience of the leadership.
Does anyone think that Elizabeth Warren wouldn't gladly maximize the hours during which her dulcet tones monopolized the airwaves of CSPAN2? Does anyone really want that to happen?
The reality is that the GOP can probably use other means to achieve everything it could achieve by invoking the nuclear option.
First, there will be two reconciliation bills. These will be used to repeal ObamaCare and achieve comprehensive tax reform. And you know what? The GOP can use the second one to achieve virtually anything else on their legislative agenda, so long as they understand the "Byrd Rule."
Incidentally, Senate Republicans can -- and should -- use reconciliation to expand the size of the lower courts -- using the "Reid rule" to pack them with conservatives. Once Democrats understand that Reid's action has produced an equal and opposite reaction, their "gratitude" to Harry Reid will diminish.
Second, there is the Omnibus, which is a perfect vehicle for everything on the GOP agenda. Let Schumer shut down the government in order to block a bill endorsed by the House, the president, and a majority of the Senate.
Third, there are bills which Senate Democrats desperately want, starting out with a trillion dollar infrastructure bill. Senate Republicans should exact a price for every one of these.
With respect to the Supreme Court, everyone expects that four or five "red-state Democrats" up for reelection will be given a pass by the Senate Democratic leadership. With only three or four "Trump-state Democrats" up for reelection needed to achieve cloture, I would bet that the mere threat of the "nuclear option" would be enough to put any nominee over the top.
"Putting the genie back in the bottle" will not be easy. But the Senate knows how to -- and has -- passed rules to limit appeals to certain of the Chair's rulings. And, as difficult as it will be, it is possible to intimidate Senate Democrats into agreeing to a global solution to restore the Senate to the rule of law -- after restoring balance to the lower courts.
Tragically, many young senators would be just as happy if the Senate operated the same way as the House. But that is not what the Founders intended. And, having gone to work on the Senate staff over four decades ago, I can assure you that the pendulum will swing again. And you will rue the day that you created a second "House-like" leadership-controlled institution.
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