Thursday, August 20, 2009

We Are All Individuals

I have some things to say about filibusters, but I'm going to wait until Greg Koger finishes his highly recommended series (here's the first post) at the Monkey Cage.

Today's chatter, however, is about the consequences of using reconciliation, and whether it would or wouldn't "blow up Washington." That's Rick Moran, via Publius, who argues that reconciliation would not be an extraordinary procedure in this case; Mark Kleiman agrees that using reconciliation here is not at all similar to the "nuclear option" (ending filibusters over judicial nominations) a few years ago. I think here Publius and Kleiman are correct.

The way to think about this is in two parts. First, no question but that the GOP would holler and scream about procedural abuse as part of their "outside" game, at least if it polled well. But that's mostly irrelevant, since in an atmosphere in which opponents of the president feel free to make stuff up (and have it believed by those they're trying to reach), there's little reason for the Democrats to base their decisions on what Republicans will say about them.

What does matter is how everyone feels about it inside the Senate. Here, I think the Democrats are on mostly safe ground -- as long as they play by the established rules. That means following regular procedure on Byrd rule challenges, for example. There's no question but that there's plenty of precedent for substantial legislation enacted through reconciliation, and so it's likely that all Senators will see the maneuver in terms of the health care debate, not in terms of the curtailing of individual Senators' rights.

The bottom line is that the structure and the mores of the Senate have produced a situation in which Senators place a very high value on retaining their individual rights. The reason that the "nuclear option" was so lethal was that by changing a major rule by majority vote, the nuclear option would have been a precedent for changing all the rules to make the Senate as much of a majority-rules institution as the House has become, threatening not only minority parties but also the extraordinary powers of individual Senators, including those of the majority party. Using the current rules creatively (and, really, this isn't creative; it was creative when Reagan's White House devised it in 1981) doesn't threaten individual Senators in anything close to the same way. (And if Republicans tried to pretend it did and attempted to shut down the Senate, Democrats could then find themselves with enough Democratic support to consider their own nuclear option).

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