Will the Senate Go Nuclear Again?

Put this in the “it’s not really nuclear” category. Despite several accounts reporting that Senator Mike Lee (R-UT) plans to go nuclear, don’t believe the headlines. That said this is likely the most interesting thing that will happen in the Senate this year, at least from a procedural standpoint. After cloture is invoked Senator Lee will attempt to revote an Obamacare repeal amendment to the highway bill that is also carrying the Export-Import Bank authorization, which is the bill the Senator really wants to kill.

Unlike regular debate, nongermane amendments are not in order after cloture has been invoked. In other words, you cannot attach the Obamacare repeal after cloture has been invoked on the highway funding bill with Ex-Im attached to it. Major reforms to the healthcare industry are simply not that relevant to fixing bridges or giving out loans. Therefore, the Senator’s motion will be ruled out of order. The Senator will then appeal the ruling of the chair, which is decided by the Senate by a majority vote without debate.

The fact that this motion will be decided by majority vote without debate is the major commonality. Forcing a majority vote in the Senate is no small feat. However, the effect of this change would not be as significant as Reid’s nuclear option, reducing cloture to a majority on executive and judicial nominees (excluding the Supreme Court).

If Senator Lee attempts this motion, it would change germaneness rules while under cloture. The effect would simply open the door to more extraneous amendments while under cloture. Put differently, this would make the Senate under cloture more like the Senate when not under cloture. In regular debate (though not on appropriations) Senators can offer completely random amendments to bills. It’s arguably the second most important feature of the Senate outside the filibuster. For example, the lack of a germaneness rule is how we arrived at this scenario in the first place. Majority Leader McConnell is amending the “Hire More Heroes Act of 2015” (H.R. 22) and replacing it with the highway funding bill and adding the Export-Import Bank, neither of which are germane to hiring heroes. This would be impossible in the House (except under a rule from the Rules Committee).

It’s unlikely but we could see a major change to Senate operation. There are a variety of ways that the leaders or others in the chamber could thwart Senator Lee’s plans. Even if there was a change, it’s not on the same level as the nuclear option. Rather, it would make cloture debate more like regular debate. It would be significant but I wouldn’t call it nuclear.

The real underlying story is the method. Since the Senate went nuclear in November of 2013, senators have learned you can change nearly any Senate process if you can find a nondebatable motion. We’ll see that method employed again as conservatives try to kill the highway/Ex-Im bill.

(For process geeks: there is an excellent paper by Tony Madonna and Richard Beth on nondebatable motions and the nuclear option that was presented at the 2014 APSA Annual Conference.)