Senate Republicans have decided to use the power of the filibuster to make it impossible for the President to fulfill his sworn duty to “take care that the laws be faithfully executed.” They don’t like the law creating the Consumer Financial Protection Bureau, so they’re promised to block a vote on any nominee to head the Bureau until the law is rewritten to their specifications. They dislike the idea that workers might be protected from arbitrary actions of their employers, and have refused to allow votes on the confirmation of members of the National Labor Relations Board; save for the President’s recess appointments – under court challenge – that agency could not function at all, which would deprive workers any avenue to vindicate their legally guaranteed rights.
It now appears that Republican obstructionism has gotten to the point where even some of the old Senate bulls on the Democratic side have decided to give partisanship and patriotism priority over institutional pride, and allow Harry Reid to move forward with the “nuclear option” the Republicans threatened to use against judicial filibusters in 2005.
There’s no polite way to put this: the nuclear option is cheating. The Senate rules, adopted at the beginning of each session, provide that the filibuster rule can be changed only with a 67-vote super-majority. Adopting such a rule is within the constitutional powers of the Senate. (There’s a claim that since the Senate is a “continuing body,” with only a third of its membership replaced each session, the old rules are binding on the each new Senate, the old rules remain binding on each new Senate, but that interpretation would give a transient Senate majority the power to permanently alter the Constitution, which can’t be right.) So there’s no way, within the rules of the Senate, that the Democrats can impose majority rule in mid-session. But (as the Texas Senate Republicans just demonstrated in the Wendy Davis abortion filibuster) any ruling of the chair, no matter how transparently wrong, can be sustained by a simple majority. And that’s Reid’s plan. He’s going to propose a rules change, Joe Biden as the President of the Senate is going to over-rule clearly valid Republican procedural objections, and (apparently) there are going to be 50 votes plus Biden’s casting vote to sustain that false ruling. Hey, presto! No filibuster for Executive-Branch nominees.
Is the cheating justified? I think it is. When a minority abuses its procedural rights with the stated intention of making it impossible for the government to function as the laws provide, there’s a strong case for extraordinary measures. Such measures should not (in Jefferson’s words) be undertaken “for light and transient causes;” a functioning republic of shared and divided powers, such as the one the Framers left us, depends on habits of forbearance among political actors: the prudent refusal to press every possible advantage to the maximum. But ever since the Gingrich Revolution, an increasingly insane Republican Party has prided itself on its lack of such forbearance, most recently demonstrated by the decision of a one-vote Republican majority on the Supreme Court to gut the Voting Rights Act. At some point, the Democrats need to play “tit for tat.”
Naturally, Republicans threaten retaliation. If the Democrats act now to make Executive Branch nominations confirmable by a simple majority, they will do the same, should they ever regain a majority, with judicial nominations and ordinary legislation. I say, “Bring it on!” in the long run, the progressive cause is strengthened by having fewer veto players.
It’s understandable that some Senate Democrats want to solve the current crisis with as little damage as possible to their own power and that of their successors. That’s why Reid plans to move ahead with a rules change covering executive nominations only. But the Republican threat of retaliation – the one sort of Republican utterance that is invariably sincere – makes the proposed strategy of limited rules change incoherent. Since the Republicans will retaliate against a limited rules change with a comprehensive rules change, Democrats will never again get any benefit from being able to use the filibuster. So, in a rational world, having been forced to use the nuclear option to move the current batch of blocked confirmations they’d use it on everything at once. There’s no point in getting a little bit pregnant.
Alas, Reid seems to have the votes for a partial reform but not for the whole thing. And I think he’s right to take half a loaf, if that’s all he can get, rather than no bread. But we will all live to regret the Senate Democrats’ failure to dare greatly.