Conservatives, don’t rejoice at the possibilities offered by the “nuclear option.”
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.
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.
Those who voted last week to override the Senate’s rules and traditions were also very likely voting to weaken their own positions and those of their successors in the Senate. Farewell bipartisan “gangs” of senators working together to draft and shepherd legislation — hello the majority leader’s dicta. If Senator Reid needs only 51 votes to change the rules of the Senate or to pass legislation, not only will he not need the cooperation of any Republicans; he also won’t need the cooperation of some Democrats. Indeed, if the Senate does become an institution of partisan majoritarianism, bipartisanship might become viewed as a political liability rather than something for which to strive. When’s the last time John Boehner and Nancy Pelosi came together to draft a piece of legislation?
Those who prefer to govern through ideology might rejoice at this undermining of legislative consensus. Ideologues care less for consensus and far more for imposing their vision on the body politic. A Senate with fewer procedural checks would be one more likely to swing to either ideological extreme. But for those concerned with the Founders’ emphasis on creating enduring legislative consensuses, a Senate high on ideology and uprooted from its moderating traditions might prove more troublesome.
The United States Senate was not intended to be a simply majoritarian institution. Staggered senatorial terms combined with the equal representation of states have traditionally caused the Senate to play a different role than the House’s in forging a national consensus. The House can capture the pulse of the American body politic at two-year intervals, and the swings in its composition mirror the dynamics of the American people as a whole. But the Senate was intended to cool and to conciliate. This tempering role has stopped some good legislative ideas from becoming law, but it has also stopped plenty of bad legislative ideas. The tendency toward reconciliation has also helped keep the republic united despite a number of heated disputes.
Some on the right are gleeful, seeing in the Reid precedent an opening for further diminution of the filibuster and other senatorial instruments of consensus. However, Republicans should perhaps be circumspect about continuing down the path opened here by Senate Democrats. The emphasis on a broad consensus has often served the interests of the country and the aims of limited government. If they should decide to ape the tactics of ideological progressivism, Republicans might find themselves setting back conservative ends.
In an era of hyperpartisan politics, what’s sauce for the goose might equally well serve as sauce for the gander, but this sauce might prove poisonous to the body politic. Nuclear warfare leaves a barren wasteland in its wake. As Republicans strategize about taking back the Senate in 2014 and the White House in 2016, they should think less about doubling down on the extremism of last Thursday’s parliamentary revolution and more about restoring in the Senate an ethos of civil integration, solutions-oriented legislating, and forward-looking, sustainable policies.
— Fred Bauer is a writer from New England. He blogs at A Certain Enthusiasm, and his work has been featured in numerous publications.