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The Senate Loses Its Tradition of Consensus
Conservatives, don’t rejoice at the possibilities offered by the “nuclear option.”

Senate Majority Leader Harry Reid

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In politics, process matters often nearly as much as — if not more than — substance, and the procedure by which the filibuster was weakened last week by Senate Democrats is likely far more problematic than the rank hypocrisy of their doing so. It is hard to view the Democratic majority’s use of the “nuclear option” as anything other than an admission of weakness and of curbed ambition. After the increasingly problematic Obamacare debacle, it seems as though President Obama and his fellow Democrats have given up the hope of governing through a national consensus. Instead, Obama has signaled that he will try to rule with the club of 51 percent for the rest of his term: Push through as much as possible with a narrow majority.

Seeing its legislative program stalled by recalcitrant Republicans, perhaps the Obama administration believes that its best chance of implementing its agenda is through the machinery of the federal bureaucracy and court system. The nuclear option increases the administration’s control of the federal bureaucracy, but it also potentially transforms the institution of the Senate.

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The precedent established by Senator Harry Reid’s use of the nuclear option is that the U.S. Senate will not be an institution of consensus and (albeit often feigned) comity. Instead, like the House, it will be run by a partisan majority. Under Rule XXII of the U.S. Senate, the rules of the Senate can be changed only by a two-thirds vote in favor. The Democrats’ detonation of the “nuclear option” delivers a crushing blow to Rule XXII. If the Reid precedent is followed, Senate rules will no longer depend upon gaining a supermajority; instead, a narrow, 51-vote majority can take control of the Senate.

Senator Reid’s actions are not totally unprecedented; a 2004 study [PDF] by Martin B. Gold and Dimple Gupta argued that the late West Virginia senator Robert Byrd was able to use a majority vote to override Senate rules. But the sweeping nature of the Reid precedent, its casual deracination of the institution of the filibuster from whole spheres of governance, seems far more consequential than Byrd’s earlier parliamentary maneuvers. Senator Reid now says that his new rules will apply only to executive appointments or lower-court judges, but it is only his whim (and that of his caucus) that keeps these limits in place.

The Senate has many institutional incentives for bipartisan negotiation and the empowerment of individual senators. Unlike the House, where the majority leadership can often bend the chamber to its desires, the Senate has proven harder to govern in a top-down manner. A web of rules and traditions protects the individual prerogatives of senators. That fact that these rules can traditionally only be changed (at least supposedly) by a supermajority of senators helps protect those individually empowering rules. In addition to other rules and traditions, the existence of the filibuster has often encouraged bipartisan cooperation. Because individual parties rarely have filibuster-proof majorities, working across the aisle has often been crucial for getting legislation passed. The need for cross-factional collaboration helped transform the Senate into a legislative body full of shifting coalitions, where each individual senator could play kingmaker on a given issue.

Following the Reid precedent would make that no longer the case. Under traditional Senate rules, it is very hard for a single leader to control all the Senate: It takes great electoral luck and extreme legislative skill. Lyndon Johnson was able to master the Senate, but few before or since have come close to his command of the institution. It’s much easier to have control of a majoritarian institution like the House, and it would be much easier to take control of a simply majoritarian Senate. If the Senate can be made a crude instrument of partisan imperatives, the chief of the dominating party becomes much more powerful.



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