Thune’s suitcase nuke – and the filibuster’s latest blast injury

It was a full-on nuclear explosion.

Just like the Pacific Testing Grounds near the Marshall Islands and French Polynesia.

But this political blast tore through the Senate chamber.

In November 2013, late Senate Majority Leader Harry Reid, D-Nev., detonated the first Senate “nuclear option.” He curbed the filibuster to confirm executive branch nominees – except the Supreme Court. Rather than 60 votes to break a filibuster, such nominees would only need a simple majority.

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Former Senate Majority Leader Mitch McConnell, R-Ky., ignited the second “nuclear option” in 2017. The Kentucky Republican anticipated a Democratic filibuster as the Senate tried to confirm Supreme Court Justice Neil Gorsuch. So McConnell chipped away at the filibuster bar for nominations to the High Court.

McConnell also lowered that bar from 60 yeas to 51.

Both of these instances were so dramatic, they featured parliamentary mushroom clouds erupting over the Capitol. The Senate eventually fell into nuclear winter after both instances, paralyzed from the fallout.

Now, Senate Majority Leader John Thune, R-S.D., is poised to discharge the parliamentary equivalent of a “suitcase nuke” on Thursday.

Thune’s gambit isn’t something to ignore. It won’t carry the same immediate parliamentary weight of the maneuvers executed by Reid and McConnell. However, it’s another crack in the Senate custom of the filibuster. The legislative filibuster still exists. Senators can still block bills if they can prevent the body from cobbling together 60 yeas to break a filibuster.

Thune will follow the playbook established by Reid and McConnell to alter the Senate precedent (note, this is not a rules change. The Senate requires 67 votes to break a filibuster on a rules change) to expedite the confirmation of lower-level nominees in groups. This plan will not include judges nor cabinet secretaries.

Thune set his gambit into motion Monday by introducing a resolution to accelerate a slate of about 40 nominees. By rule, the Senate will take a procedural vote to break a filibuster on his resolution to confirm the batch of nominees on Thursday. The resolution itself – which is specific to this type of batch of nominees – needs 60 yeas. The Senate won’t get 60 yeas.

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But this is exactly the scenario that Thune needs in order to go nuclear.

The coin of the realm in the Senate is unlimited debate. But one of the rare occasions senators can’t debate something is when an issue fails and a senator requests a re-vote. So a failed vote to break the filibuster backs the Senate into the exact parliamentary cul-de-sac which Thune wants.

At the end of the roll call vote, Thune will likely switch his vote from yes to no on breaking the filibuster. The Senate allows members to demand a mulligan if they are on the prevailing side of the issue. In this case, Thune is suddenly with the “noes,” even though he initially voted yes to break the filibuster. But remember, Thune is only temporarily switching his vote in order to advance his cause. He may lose the battle. But may ultimately win the war.

By changing his position, Thune can then order a re-vote on the roll call which failed. And since the Senate is in this unique posture of not allowing any debate, Democrats are paralyzed. They can’t do anything to stop Thune from what he plans next.

This is very similar to what Reid did in 2013, followed up by McConnell in 2017, on the first two nuclear options.

Thune will then make a point of order on the floor.

Thune will assert that on the resolutions like the one he drafted, a bloc of lower-level nominees (e.g. – the ones now before the Senate) does not need 60 votes to break a filibuster. The chair – potentially Senate President Pro Tempore Chuck Grassley, R-Iowa, or even Vice President Vance, who is the President of the Senate – will presumably rule that Thune is wrong. Senate rules and precedent do require 60 votes to break a filibuster on this type of resolution.

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But Thune doesn’t stop there.

The Majority Leader will then request a vote to overturn how the chair ruled. He will assert that a simple majority is necessary to break a filibuster for this type of resolution – even though that’s never been the case before.

The Senate will vote. And if 51 senators vote in favor of ruling against the chair, the Senate will have established a new precedent. It will lower the threshold from 60 to 51 on this type of resolution to speedily advance a batch of nominees all at once.

Once the Senate does that, Thune will need to set up another procedural vote under the new precedents to break a filibuster. If Thune “files cloture” again on Thursday, the Senate can vote on Monday to break a filibuster – needing only 51 yeas – on Monday, Sept. 15. If the Senate votes to break the filibuster on the resolution under the revamped precedents, the Senate could vote to confirm the 48 nominees in question on Wednesday, Sept. 17.

Here’s an example of some of the nominees in the queue for confirmation:

Former Rep. Brandon Williams, R-N.Y., is up for Under Secretary for Nuclear Security. President Trump tapped Leslie Beyer to serve as Assistant Secretary of the Interior. Richard Anderson to become an Assistant Secretary of the Air Force. Jovan Jovanovic to lead the Export-Import Bank. Callista Gingrich, wife of former House Speaker Newt Gingrich, R-Ga., is the President’s pick as Ambassador to Switzerland and Liechtenstein.

Thune says that Democrats are obstinate, not allowing the Senate to confirm a batch of nominees in one fell swoop. He accuses Democrats of obstruction, saying the minority is trying to undermine the President.

“This is simply the world’s longest, most drawn out temper tantrum over losing an election,” said Thune.

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But Senate Minority Leader Chuck Schumer, D-N.Y., had a message for Republicans: caveat emptor. Especially when Democrats eventually return to the majority and have a Democratic president.

“I say to my Republican colleagues, think carefully before taking this step,” warned Schumer. “If you go nuclear, it’s going to be a decision you will come to regret.”

One could argue that Democrats helped crack open this door when Reid initiated Nuclear Option #1 in 2013. Democrats were frustrated over Republicans hamstringing President Obama’s nominees.

The same when McConnell returned the favor over the Supreme Court with Nuclear Option #2 in 2017.

And if you’re a real student of history, consider that late Senate Majority Leader Robert Byrd, D-W.V., really set the table for Thune’s maneuvers via three precedent gambits in 1980.

So the tit-for-tat continues.

During the Cold War standoff between the U.S. and the Soviet Union, geopolitical observers said the world teetered on mutually assured destruction. Launching a nuclear attack on one nation would result in annihilation of both countries. One country may strike first. But the prime aggressor would not survive because of guaranteed retaliation, in kind.

There is no such mutually assured destruction doctrine in this parliamentary wargame. Neither Democrats nor Republicans have fired a full nuclear volley at the other side. Each strike has been “strategic,” directed at a limited political target. Thus, there’s no mutually assured destruction.

But that also means there’s no incentive for Senate détente.

And that’s why these parliamentary strikes and counterstrikes probably don’t end any time soon.