After threatening to do so ever since they took back control of the Senate in 2008, Democrats may finally get around to trying to limit the right to filibuster this month. As the New York Times reports, Senate Majority Leader Harry Reid thinks he’s finally got a clear path to hamstringing Republican attempts to use the rules to prevent the president from getting more of his nominees for various offices confirmed. But though they—and their cheerleaders in the mainstream media—believe the time is right to start rolling back filibusters, it is far from certain that even this limited proposal can pass.
Reid appears to be planning to stage some confirmation fights in which he knows he doesn’t have 60 votes for cloture. But this carefully crafted confrontation won’t really be about the kinds of filibusters that generally get the most attention. Democrats are proposing that the new rule will only affect stalls of appointments to federal agencies and cabinet posts but leave in place procedures which require at least 60 votes to end debate on judicial appointments as well as legislation. That will allow Democrats to argue that the only thing they are asking is for Republicans to allow the government to function and to let the president have, as tradition allows, his choice on who should lead Cabinet departments and agencies. But the notion that the motivation for all this is a particularly unique or unprecedented series of actions by Senate Republicans to obstruct the government doesn’t wash. Both the specific nominations that Reid will use to leverage the filibuster limits and the recent history of Democrat stalls undermine the majority’s credibility. Getting even 51 Democrats to buy into making historic alterations in the Senate rules on these flimsy grounds may be a heavier lift than Reid and President Obama think.
Though this all may be a gigantic Democratic bluff, Senate Minority Leader Mitch McConnell has noted during his frequent speeches on the issue, “Majorities are fleeting, but changes to the rules are not. And breaking the rules to change the rules would fundamentally change this Senate.”
Though thanks to Frank Capra’s classic Mr. Smith Goes to Washington they are enshrined in American popular culture, filibusters are not mentioned in the Constitution. The Senate can change its rules allowing them any time it wants as the advent of cloture rules requiring 60 votes to stop debate showed.
But the reason why filibusters survive in their current form is the stark knowledge that both parties know they are the only thing that allows minorities in the upper body to have a say in legislation. Without them, the Senate could function like the British House of Commons where a narrow majority can always shove any bill down the country’s throat. The filibuster is important because it is the perfect tool for an institution created by the Constitution specifically to act as a check on majority opinion and impulses.
Critics of the filibuster say it is a fundamentally undemocratic practice and they’re right about that. But the Senate is itself a body created to thwart democracy with small states getting a disproportionate voice in the nation’s affairs and six-year terms meant to stand in contrast to the more frequent election cycles that, at least in theory, keep the membership of the House of Representatives closer to public opinion.
But the main point here is that it was only a few years ago that Senate Republicans were in charge and it was the Democrats who used filibusters to stop George W. Bush’s nominations to the judiciary and even cabinet posts. As I noted in 2009, the New York Times endorsed filibusters as an essential tool that enabled liberals to thwart the GOP, but they changed their minds as soon as Democrats took back the Senate. Since then, Republicans have done their share of obstructionism, but it has been no worse than the Democratic mayhem wreaked on Bush administration plans. If Senate Democrats and the mainstream liberal media are up in arms about the use of the filibuster now, it is only because the dysfunction of Congress has become their main talking point about GOP beastliness, not because what Republicans are doing is any worse—or better—than what President Obama and his party were doing prior to his taking office.
Even more damning is the fact that the specific nominations that Reid has chosen to make his stand over are not typically anodyne confirmations. All of them are controversial not so much because of the individual nominees but because of the manner in which they were appointed or because the agency posts they seek to fill are in and of themselves points of partisan contention.
In particular, Republicans are on very firm ground in seeking to use the rules to stop President Obama’s nominations to the National Labor Relations Board. Four of Obama’s nominees to the NLRB are already serving since the president snuck them into their posts as recess appointments, something that was rightly opposed by the GOP as a power grab. The Supreme Court has accepted the case for review and may well rule that they should never have been appointed in this manner in the first place. The Senate should wait until that case is decided before going any further.
The GOP also has a strong case in opposing other nominations that Reid is seeking to use as a litmus test for the future of the filibuster. Virtually the entire Republican caucus has vowed not to confirm any appointment to the new Consumer Financial Protection Bureau until it is reformed in order to create a bipartisan leadership for it rather than having it led by a single political appointee.
While Democrats are eager to get these agencies functioning in a manner that will further their political agenda, these appointments are poor examples of the alleged plague of Republican-inspired dysfunction.
But above all, the key issue here is hypocrisy. As even the New York Times noted today, it was Senator Barack Obama who said the following about GOP threats of changes in the filibuster rules:
If they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.
The president was right about this issue then, even if he and his followers have attempted to throw that statement and the reasoning behind down the proverbial memory hole. One suspects that more than a few Democrats mindful of the fact that they might find themselves in the minority in 2015 or 2017 will remember that and prevent Reid from changing the rules.