How Nuclear Weapons Can Serve the Cause of Moderation

I had planned on posting a response today to Chris’ recent take on the flawed rollout of Obamacare, but that will have to wait. There’s simply no way we can talk about Healthcare.gov right now when this week brought something far more consequential for the future of American politics. (Actually, we might be able to talk about Healthcare.gov somewhere along the way. We’ll see how it goes.)

Around noon on Thursday, Senate Majority Leader Harry Reid (D-NV), backed by 51 of his fellow Democrats, set off a nuclear bomb on the floor of the Senate. “How did they get it past security?”, you might ask. Well, as it turns out, it wasn’t a real bomb! The nuke in question was the so-called “nuclear option,” a parliamentary tactic that allows the chamber’s rules to be altered by 51 senators (a simple majority) where ordinarily 67 (a two-thirds supermajority) are required. Technically the nuclear option does not involve formally changing the rules, but rather successfully appealing a ruling from the chair in a way that creates a new, binding interpretation of them. The proximate cause of the showdown, which represents a dramatic escalation of a long-simmering crisis, was a Republican filibuster of three of Obama’s nominees to the D.C. Circuit on the grounds that the court is “underworked” and the president is attempting to “pack” it with his ideological allies.

The history of both the phrase and its threatened use has been amply documented in media coverage of the rule change, and so I won’t go into all of the details here. Instead, I want to focus on how I think people interested in moderate and effective governance should feel about this development, and what its likely effects on the dynamics of the American political system will be over both the short run and the long run.

The essence of the change is that only 51 votes will now be required to cut off debate on most presidential nominations to executive positions and to seats on federal courts, which are required to receive the “advice and consent” of the Senate before they take effect. For now, Supreme Court nominations will remain filibuster-able, as will legislation. One immediate consequence is that it will now be much easier for the President to staff the government with individuals of his choosing. Some tentative steps were taken last year toward giving the president greater power over executive appointments when Congress voted to exempt dozens of positions from the requirement of Senate confirmation, but Thursday’s change goes even further in this direction.

One reason why this is significant is that some federal agencies are structured in such a way that their legal powers are not fully instantiated until they have an official, Senate-confirmed head. One such agency is the Consumer Financial Protection Bureau, which was created by the Dodd-Frank Act of 2010. Republicans blocked the nomination of Richard Cordray, Obama’s pick to lead the Bureau, for over a year because they wanted it to be restructured in a way that decentralized its authority. (Cordray was ultimately confirmed several months ago as part of a deal whereby Republicans dropped their objections to several nominees in exchange for Democrats agreeing not to invoke the nuclear option. Quite a durable deal, that was.)

Cordray is in fact an illustrative example of the opposition’s modus operandi on appointments throughout the Obama Administration. Senate Republicans have publicly admitted on numerous occasions that the individuals whom they choose to block are not unqualified, nor do they suffer from character defects that ought to bar them from taking office. Rather, the objections are usually based on the fact that blocking nominees is a way of blocking aspects of the President’s agenda, insofar as the implementation of that agenda involves regulatory or other extra-legislative actions. In other cases, the Republicans have stymied nominees for reasons wholly unrelated to either the nominees or their would-be positions, as when Sen. Lindsay Graham (R-SC) announced that he would place a hold on every nomination he could until he received permission from the White House to question survivors of the September 2012 attacks in Benghazi, Libya.

The key question is whether such practices should be permissible. Republicans have warned that Democrats will come to rue the day they detonated the nuke; at some point, when they are once again consigned to the minority in the Senate and a Republican once again sits in the White House, they will be unable to block nominations they don’t like. But Reid and his allies calculated that this was a risk worth taking – to the extent that they even viewed it as a risk.

While I remain partially agnostic about the procedural legitimacy of the way in which the rules were changed, I agree with the argument put forward by Senate Democrats that the benefits of a president – any president – being able to staff the government in a timely fashion outweigh the costs of sometimes seeing the government staffed by a president with whom one disagrees. After all, allowing the president more autonomy and discretion in the implementation of laws already passed will make it easier for voters to judge whether a particular administration has been successful. It will now be far more straightforward for the electorate to know whom to reward when the government is managed well and whom to punish when it is not.

It also makes it more likely that presidents will fire officials who do their jobs poorly, since it will now be much easier to replace them. Slate’s Dave Weigel, after musing on Twitter that the path is now cleared for Obama to put Bill Ayers on the Supreme Court, noted that Obama could dismiss Kathleen Sebelius for her role in the Healthcare.gov debacle and not have to worry about the prospect of getting a new Secretary of Health and Human Services confirmed (see, we got to talk about Healthcare.gov!). Wonkblog‘s Ezra Klein concurred, and speculated that more individuals might now be willing to accept presidential nominations, since the risk of another Peter Diamond affair has diminished. And, freed from the need to mollify enough members of the observation to dodge a filibuster, he added they might even be willing to express their views with greater candor during the confirmation process.

Now that the stigma against using the nuclear option is gone, it is virtually inevitable that the filibuster will be weakened further or even outright eliminated in the future. But I don’t think that’s a bad thing. It seems to me that one of the long-run effects of this rule change and the rule changes that are sure to follow will be to increase, if only slightly, the standing of Congress in the eyes of the public, and to restore, if only somewhat, Americans’ faith in the efficacy of government. In so doing, the influence of anti-government or anti-establishment ideologies may be diminished, a development that would greatly benefit the cause of political moderation.

Defenders of the filibuster argue that it compels consensus-building and prevents the majority from running roughshod over the minority. It has certainly succeeded at the latter, though it has failed miserably at the former. Political scientists Norm Ornstein and Thomas Mann have written about the fact that the institutions of the federal government were not designed for an environment in which polarized parliamentary-style political parties wielded significant power, and that, now that we find ourselves in such an environment, we ought to take steps to move toward a different kind of governmental model.

The reason that we got by for so long without a total meltdown of the Senate was because there were unwritten rules of conduct and implicit codes of behavior that governed the actions of senators, in addition to the rules that are actually written down. Those norms have been steadily eroded, to the point where many are now nonexistent. The filibuster did not compel moderation; moderation compelled the judicious use of the filibuster.

Shouldn’t moderates worry about what might happen if the majority is consistently able to ignore opposing viewpoints? Maybe. But again, perhaps counterintuitively, empowering the majority might serve to combat some of the primary sources of cynicism about government. Sen. Tom Harkin (D-IA) declared on the floor of the Senate after the rule change that Republican intransigence is a major cause of Congress’ rock-bottom approval ratings:

It is because of my great reverence for this institution and my love for our country, that I come to the floor today. One does not need to read the abysmal approval ratings of Congress to know that Americans are fed up and angry with their broken government. In too many critical areas, people see a Congress riven with dysfunction. Citizens see their legislature going from manufactured crises to manufactured crisis. And, they see a legislature that is simply unable to respond effectively to the most urgent challenges of our time.

Of course, there are a myriad of reasons for this gridlock: increased partisanship, a decline in civility and comity, too much power in the hands of special interest groups, a polarizing media, and the increasing time demands involved in raising a large amount of money to run for reelection.

But, make no mistake; a principal cause of dysfunction is the rampant abuse of the filibuster in the United States Senate. And, it is long past time to make the Senate a more functional body, one that is better able to respond to the nation’s challenges.

In response, Minority Leader Mitch McConnell (R-KY) argued that the real reason for the public’s disgust was the fact that Democrats had resorted to desperate and unseemly measures to pass major new legislation, like holding a middle-of-the-night Christmas Eve vote on healthcare reform in 2009.

Perhaps they’re both right. Although we’ve written before about the false allure of false equivalence, the question of who started the Senate’s filibuster wars really does look like a chicken-or-the-egg-type conundrum. Maybe the GOP started blocking judges because of the Democrats’ indecorous Obamacare machinations. Maybe the Christmas Eve session was itself a reaction to Republican obstruction. Regardless of which story is more accurate, one can see that eliminating the use of the filibuster on most appointments might have a salutary effect. Blocking nominations will no longer be a viable tool of political retaliation, and engaging in arcane procedural tactics to try to short-circuit obstruction will no longer need to happen as often.

As Tom Harkin explained in his floor speech, it doesn’t really matter who started it. The fact is that the federal government – and especially the Senate – is wildly dysfunctional, and even if people don’t know whom to blame they know they don’t like it. Maybe this small step toward functionality will be a small step toward dissipating some of the unremitting pessimism about the direction in which our country is headed.