It may sound like congressional “inside baseball,” but yesterday’s decision by Senate Majority Leader Harry Reid to limit the power of the minority to block nominees for Executive Branch and most judicial vacancies is momentous. Ezra Klein, a liberal Washington Post columnist, says Reid’s move gutting the filibuster rule that required 60 Senate votes in order to move nominees whom a determined minority opposed “has changed how all Congresses to come will work.” The “nuclear option” on Senate rules has been invoked.
This year marks the 100th anniversary of the Senate’s changing from a body selected by state legislatures to one elected directly by popular vote. But that change came through passage of a constitutional amendment and its subsequent ratification by four-fifths of the states. Reid’s move abandoning the Senate’s longtime protection of the minority was done by the will of one man acting with a bare 52 to 48 majority of his colleagues. Three Democrats (Mark Pryor of Arkansas, Joe Manchin of West Virginia, and Carl Levin of Michigan) opposed his power play because it will inflame partisan tensions in the body and limit the role George Washington said the Founders envisioned for the Senate: “We pour legislation into the Senatorial saucer to cool it” from the passions of the House. Many now fear the Senate will almost inevitably come to resemble the House rather than a consensus-driven body consistent with the design of the Founders.
Democrats claim their move was necessary because Republicans have recently blocked three nominees to the U.S. Court of Appeals for the District of Columbia Circuit and an executive-branch nominee, Representative Mel Watt (D., N.C.), who was nominated to be the regulator of Fannie Mae and Freddie Mac. The GOP claimed that adding three new judges to the influential D.C. Circuit — which hears most major regulatory cases — was a purely ideological move, since the workload of the court was provably so light. In 2006, when Democrats were in the Senate minority, they used that very argument to urge the late Judiciary Committee chairman Arlen Specter not to confirm any additional Bush nominees to the D.C. Circuit — and none were confirmed.
It’s certainly true that many Republicans were once tempted to trigger the nuclear option. In 2005, GOP Majority Leader Bill Frist (R., Tenn.) proposed invoking it to clear a filibustered logjam of judicial nominees. But an eloquent critic of the practice stepped forward and convinced enough Republicans to back down and keep the filibuster. His name was Harry Reid, and he was then the minority leader. As he said on the Senate floor at the time: “For 200 years, we’ve had the right to extended debate. It’s not some ‘procedural gimmick.’ It’s within the vision of the Founding Fathers of our country. They established a government so that no one person — and no single party — could have total control.”
Reid used to boast about his role in “saving” the filibuster. In 2008, he claimed: “In all my years in government, that was the most important thing I ever worked on.” He swore that as long as he was leader he would never use the nuclear option, saying it would be a “black chapter in the history of the Senate.”
Reid began seeing virtue in shades of gray in July of this year, when he proposed going nuclear by changing the filibuster rule when it came to executive-branch nominees. But he assured everyone that any change would stop there: “We’re not talking about changing the filibuster rules that relate to nominations for judges.”
Republicans retreated on their objections to key Obama executive-banch nominees and allowed them to be confirmed. But only four months later, Reid was back, and this time limiting filibusters on judges was added to his demands. He himself wrote the “black chapter” in the Senate’s history he had previously warned about.
Reid insisted that the rules changes he forced through yesterday don’t apply to Supreme Court nominations, but few believe he will hesitate to further erode the filibuster if it is convenient to his party.
Also Iowa Senator Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, says, Democrats cannot expect to change the rules for lower-court nominees and still preserve the right to filibuster a GOP Supreme Court nominee if Republicans control both the Senate and the White House after 2016.
Democrats say the crippling of the filibuster will make government more efficient and allow legislation to pass more easily. But there is a downside to majoritarianism and the “efficiency” it brings. As Phil Kerpen, author of the 2011 book Denying Democracy, told me: “The filibuster change will make it far more likely that major legislative accomplishments can be swept away in the next swing of the political pendulum. Public policy will be less stable and long-term business planning will be confounded.”
In short, it will make government more unstable. Temporary majorities could pass sweeping legislation on immigration policy, tax law, and regulatory procedures with no bipartisan input — as was done in 2010 with the passage of the now unraveling Obamacare law.
Many people have decried the extent to which the Senate has become a bitter, partisan place with fewer examples of bipartisan consensus building. But giving whichever party has a narrow majority free rein to approve presidential nominees isn’t the solution. Over time, it will become clear that this “cure” is far worse than the disease the snake-oil salesmen behind it claim it is treating.