How Senate Republicans Can Retaliate on the Filibuster

Senate Minority Leader Mitch McConnell Senate Minority Leader Mitch McConnell J. Scott Applewhite/AP

If you're looking for a coordinated Senate Republican tactical response to Harry Reid's nuclear detonation, you're not likely to find it any time soon.

Republicans have no proportional counterattacks now that the majority leader has scorched the filibuster on nominees. But that doesn't mean they don't have any means to strike back.

There are plenty of procedural tools GOP senators can use to extract smaller wins or inflict some pain on Democrats in the interim, but ultimately the best way for the minority to retaliate is to win a majority in 2014, say Capitol Hill strategists and advisers.

The Senate's reliance on unanimous consent to pass many bills provides Senate Republicans with a powerful lever to pull. UC is often used to move noncontroversial bills quickly through the upper chamber. Some Republicans say that's not likely to happen as often now. "There will be no UCs," suggested a former senior GOP aide. "You won't be able to get a UC to go to the bathroom."

Already, conservatives outside the Capitol are urging Senate Minority Leader Mitch McConnell, R-Ky., to exercise this option. Red State, the influential conservative website, called on Republicans to withhold consent on every issue that comes before the Senate.

But there are downsides—namely, that withholding consent plays into Reid's efforts to paint Republicans as obstructionists. So if torpedoing all UC requests gives Senate Democrats an advantage, there's little incentive to pursue that course, argue some Republicans. Plus, the Republican-controlled House ensures nothing unpalatable will get through.

"Senate Republicans don't have to jam up the system," said GOP strategist Rick Wilson. "They don't have to play screw around because the House plays a buffer."

Other influential conservatives, such as Rush Limbaugh, have suggested stigmatizing the nominees confirmed in the post-nuclear-option Senate, giving them an air of illegitimacy.

But there's little indication on the Hill—at least, so far—that Republican senators will adopt this approach. A senior Senate GOP aide said there has been no effort to mount a conference-wide response and doesn't expect one for now.

The more likely strategy, say former Senate aides, would be for McConnell to pick which bills and nominations to hold up, with the intention of extracting some cost from Reid.

"If Harry Reid is trying to push something through at the end of a session, then now you really have it," said Mark Strand, president of the Congressional Institute and a former top aide to former Sen. Jim Talent, R-Mo. "You punish him for something he really wants."

As for whether that approach plays into Reid's aim of casting Republicans as obstructionists, Strand pushed back. "Really you're trying to create a give-and-take," he said. "In exchange for what you want, here's what we want."

Plus, that whole obstructionist narrative is "already baked in the cake," said Wilson. "It's hard for people to hate Congress any more than they already do. It's hard for people to say, 'Goddamn those Republicans,' more thoroughly than they already have."

Go too far, and Republicans fear they could be even further marginalized as the minority party in the upper chamber. From their point of view, Republicans believe Reid has demonstrated his willingness to do whatever it takes to score victories for Democrats and the White House.

"Right now, there's no incentive for the White House to negotiate with us because Reid will change the rules," a former GOP leadership aide said.

Whether Reid would actually revisit the nuclear option on legislation, though, seems unlikely. Getting the votes to strip the filibuster threat from nominees was difficult enough, and Reid said in an interview with WAMU this week that he'd leave the decision to future majority leaders to decide whether to expand simple-majority rule in the Senate.

Democrats, for their part, aren't yet sure how Republicans will strike back in the next year. "People assume they're going to make us burn all the time on debating nominees. As far as how their frustration will manifest itself on the legislative calendar, we don't know yet," said a Democratic leadership aide. "The ball is in their court."

What it all really comes down to is control of the Senate. Republicans acknowledge the only way to get that is to prevail against the vulnerable Democrats up for reelection in 2014. Messaging over procedural rules really isn't going to work in a place like Louisiana, Arkansas, or Alaska. And given that Reid "reigns supreme" in the Senate, "literally the only strategy available to Republicans is to win in 2014," said a Senate GOP aide.

If that happens, all bets are off. McConnell declined to lay out his plan of attack after Reid changed the rules. But Sen. Chuck Grassley, R-Iowa, gave some indication on the Senate floor last week.

Grassley said the "silver lining" of the change is that Republicans will one day be in the majority, and they "will likely" nominate and confirm both lower court and Supreme Court nominees with 51 votes. The Senate changes last week still left the filibuster intact on nominees for the highest court in the land.

"There will come a day when we will have the Senate," Wilson said, "and our vengeance will be hideous to behold."

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