Friday, October 7, 2011

What the heck is the "Nuclear Option"?

Last night Senate Majority Leader Harry Reid exercised the "nuclear option" in order to forestall GOP efforts to use existing Senate rules to force the Democrat majority to make, for them, embarrassing votes against President Obama's latest "Jobs" bill.

The particulars of any exercise of a "nuclear option" are typically arcane and can get both confusing and boring fairly quickly.  As a result, I find that most news outlets don't take the time to explain it adequately.

"Nuclear option" is just shorthand for a change, any change, in the Senate rules by the majority of the Senate to make it easier for that majority to have its way.  There's nothing illegal or unconstitutional about it.  But it is a serious break with long-standing tradition and for that reason has come to be labeled "nuclear" in nature.

That long-standing tradition is based on our founders' theory of government and their logic went something like this:   

1.  The form of government best suited to secure individual and minority rights is government by consent of the governed, i.e., democracy.
2.  The problem with democracy, where by definition the majority rules, is that the majority can and sometimes does become tyrannical, using its power to rule to trample minority rights.
3.  In order to prevent or at least hamstring a tyrannical majority, constraining constitutional measures are necessary.
4.  The first measure is simply the formation of a representative versus a direct democracy.  The people only rule through their elected representatives.  If some issue excites a majority of the people into potential tyranny, they can only exercise their power through their representatives, men and women, hopefully, wiser than themselves, better able to withstand the pressure to act tyrannically, or do so at least until the next scheduled election by which time, again hopefully, intemperate passions will have cooled.
5.  Notice that I used the word "hopefully" twice.  Our framers did not assume that "enlightened statesmen" would always govern and therefore believed further constitutional protections of minority rights were necessary.
6.  Their strategy was to divide the power of government and make the divided powers jealous of each other prerogatives, instituting a system of checks and balances.  The first division of power is between the national and the individual state governments, or the principle of federalism.  The second is to divide the national government itself by splitting its powers between legislative, executive, and judicial branches, or the principle of separation of powers.
7.  But even that, they reasoned, was not security enough for individual or minority rights.  Hence, they provided for the further division of the legislative branch into two houses, each with different electoral schemes and modes of representation. 
8.  Representation in the House is proportional to population.  Populous states have many representatives and smaller states fewer.  Within the House the governing rules reflect precisely the straightforward principle of majority rule.  However, as a result of this, the possibility at least of the formation of a tyrannical majority within it exists.
9.  This is not, or at least less possible in the Senate.   First, because in the Senate each state, big or small, has exactly two representatives.
10.  Consistent with that mode of representation and with the framers' desire to be especially protective of individual and minority rights, the rules of the Senate, established within that body by simple majority vote, have always over-empowered the minority or, if you prefer, frustrated the majority.  Those rules, traditionally, have always required super- and not just simple-majorities for the passage of  legislation, especially controversial legislation like the President's latest "Jobs" bill.

So, when Senate Majority Leader Reid changes the rules of the Senate in order to facilitate his party's agenda at the expense of the minority party's, it's a very big deal.

One could even say it's "nuclear" big.

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