Eighteen years ago, in 2003 when Democrats were filibustering one of George W. Bush's judges, Senate Majority Leader Trent Lott renamed the Constitutional Option as the "Nuclear Option" and suggested it should be expanded from just Article I work (taxing and spending) to include Article III types of work (approving judges).
Senator Lott didn't get his way; it took Democratic Senate Majority Leader Harry Reid to include approving federal judges (with the exception of the Supreme Court) under the Constitutional Option/Nuclear Option. On November 21, 2013, after years of Obama's judicial nominations being routinely blocked by Republican filibusters, Reid pushed through a new set of Senate rules that exempted judges from the filibuster.
Approving judges, after all, is also an explicit duty of the United States Senate found in the Constitution.
Mitch McConnell expanded the Constitutional Option/Nuclear Option in April of 2017 when Democrats declared an intent to filibuster Trump's first SCOTUS nominee, Neal Gorsuch, who replaced Merrick Garland as the nominee-in-waiting when President Obama's term in office expired.
Thus, today the Senate has an exclusion to the filibuster so that all the Senate's advise and consent obligation s can be performed with regard to judges with a simple majority vote.
Thus, two of the duties of the Senate listed in the Constitution -- appropriating and spending money, and ratifying the President's judicial nominees -- are today exempt from the filibuster.
It's time to add a third.
The Elections Clause of the Constitution empowers Congress to "make or alter" state regulations with regard to elections.
If the filibuster itself can't be done away with or turned into a "Jimmy Stewart filibuster," then argues Congressman Jim Clyburn another constitutional obligation of Congress should be included in the "Constitutional/Nuclear Option" Senate rules, this one to protect citizens' constitutional right to vote.
"We need to get rid of the filibuster for constitutional issues," Clyburn said, "just as we have done for budget issues. If you want to argue about how high a wall ought to be, whether or not you ought to build a wall, those are issues that are political...but you ought not be filibustering -- nobody should filibuster anybody's constitutional rights. We have done it for the budget under reconciliation. And reconciliation is a much better word to apply to constitutional issues than it is to the budget."
Clyburn is right. As Thomas Paine pointed out, the right to vote is foundational to all other rights and is what gives legitimacy to our government itself. In 1795, in his Dissertation on the First Principles of Government, Paine wrote:
"The true and only true basis of representative government is equality of rights. Every man has a right to one vote, and no more in the choice of representatives...To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case. The proposal therefore to disfranchise any class of men is as criminal as the proposal to take away property."
Paine was right, as is Clyburn. Senator Schumer, if he can't get his caucus to go along with more forceful actions like eliminating the filibuster altogether, should do what his predecessors Senators Baker (1980), Reid (2013) and McConnell (2017) did: drill another "Constitutional" hole in the filibuster.
The right to vote is far more important than Congress spending money or approving judges. It deserves at least equal treatment, and, like in 1917, the crisis is upon us.
