Tuesday, July 19, 2011

Nullification and Democratic Norms

Tom Mann, who I generally figure is right about everything -- and who in general is not given to exaggeration or sensationalism -- tells Jonathan Cohn that the current GOP practice of undermined laws by blocking confirmation is a modern-day form of nullification:
In the case of the Consumer Protection Board, Senate Republicans have said they would not confirm anyone who does not agree to restructure the leadership of the agency from a single person to a multi-member body. They insist that a legitimately passed law be changed before allowing it to function with a director – a modern-day form of nullification. Same with the director of the Center for Medicare and Medicaid Services. There is nothing normal or routine about this. The Senate policing of non-cabinet appointments is sometimes more aggressive but the current practice goes well beyond that, more like pre-Civil War days than 20th century practice.
I'd put this in a bit of a broader context, too. What I'd say is that this is consistent with previous examples of something I've written about before, and which Mark Tushnet calls "Constitutional hardball." The GOP practice, for the last twenty years or so, has been to play the "game" of politics in part by looking through the rule book for strategies that go beyond the norms of politics but are allowed under the literal reading of the rules. Examples include mid-decade redistricting, the recall of a California governor for no particular reason, and impeaching Bill Clinton. And, most notably, filibusters in the Senate as a routine measure. The idea is that in a normal, healthy, political system there's always going to be some gap between the written Constitutional and statutory rules on the one hand, and norms and practices on the other. A clever political party can gain occasional short-term advantages through exploiting that difference. Hmmm...19th century baseball: I seem to recall a story that someone (perhaps King Kelly?) was sitting on the bench when a pop foul came near him. Springing into action, he announced "Kelly in at catcher for Smith" and caught the ball for an out, pointing out after the fact to the umpire that nowhere in the rules did it say that substitutions couldn't take place in mid-play.*

How do you fight back? Well, one can adjust the rule book to prevent future advantage, although that tends to be a lot harder in politics than it is in sports. Mostly, however, the other side can just threaten to fight fire with fire. In the case of nominations, that means recess appointments even in questionable circumstances, or action by the Senate to eliminate or curtail filibusters by majority rule. At the very least, Barack Obama and the Democrats should be threatening such action, and if necessary they should act.

I suppose I should also mention that Constitutional hardball is a destructive practice that places short-term partisan gains over the stable functioning of democracy, and that people shouldn't do that sort of thing. But once one side begins, there's really no good option other than fighting back.

*Someone, I hope, will correct my memory on this one, which I didn't look up, but there are many such stories about 19th century baseball, most of them surrounding the old Orioles, and there's every possibility that some of them are true.


  1. I don't know whether the King Kelly story is actually true, but I can tell you I've read that same story, pretty much word for word, I think in one of Bill James' books. Given the context, I'd say it's probably in one or the other edition of the Historical Abstract, but that's just an educated guess.

  2. I think it's too dangerous of a game to play. If I remember correctly the Senate recently changed some of the rules regarding confirmations, but it was done on a bipartisan basis. And it was regarding low level appointments.

    Bigger subjects, like federal judges, could get even worse to the point it won't be worth for anyone to go through the process if rules keep changing.

  3. In California, the GOP has been practicing nullification for quite some time.

    In negotiations over the budget a few years ago (which, until this year, was subject to a 2/3 vote for no good reason), the GOP (aka hopeless minority party) wanted the Dems to completely kill off the just-passed AB 32, the fairly aggressive global warming law.

    The GOP really has gotten to the point where they are using anything that requires GOP votes to insist that the GOP is in charge of the legislature (be it state or federal).

    I really wish somebody could get through to swing voters to show them the sheer chutzpah and insanity they get when they vote for these guys. It's perfectly rational for a conservative/Republican to vote for them; heck, they're playing hardball to advance causes those voters likely believe in. But moderates or independents? I tend to think that they don't realize just how nuts the modern GOP is.

  4. I am wondering if political science gives us any reason to think this phenomenon is self-correcting. It seems to me the incentive has been there for a long time for Democrats to "fight fire with fire," but they don't. I know there's some theorem that says that it always seems to partisans like the other side's partisans are better, tougher, more determined, etc. than one's own, but isn't this post saying that that's objectively true in this case? My view of American politics really turns on the question of whether we can be confident that at some point, the "fire" we're seeing now from the GOP gets fought -- because incentives built into the Madisonian system finally kick in, or whatever -- or whether we're seeing a one-way process that could end up destroying democratic political culture, and leaves us with a system that is structurally incapable of turning what most Americans actually want or need into policy.

  5. I'll take Jonathan's approving (I think) quotation from Scott Lemieux in the "Catch of the Day",

    "...supporters of same-sex marriage should be willing to use any tool of the American democratic process -- legislation, litigation, or initiative -- that might work",

    and assert that Washington Democrats and their allies would benefit from a similar mindset when approaching the issue of nullification and democratic norms.

    *If Republicans are blocking judicial and executive nominations by taking advantage of existing Senate rules and norms---change the rules and change the norms.

    *If Republicans are routinely blocking legislation by invoking cloture and requiring 60 votes merely to debate legislation---change Rule 22 and return to majority rule in the Senate.

    *If House Republicans refuse to compromise and raise the debt ceiling next week---invoke the 14th amendment.

    In the old days, before he became the hyperventilating host of the MSNBC show by the same name, Chris Matthews took his Capitol Hill "war stories" and turned them into a decent little book titled "Hardball". The book captured, among other things, some of the fun of political combat and negotiations. Today's Democrats could use more of the spirit and confidence displayed by Matthews' old bosses, Tip O'Neill and Ed Muskie.

  6. Jeff, it does seem to be a one-way process (and the work of destruction is well under way).

    Establishment elected Dems feel that they need to protect their flanks against hysterical attacks from the right; they feel they need the same (or inter-related) support from the business community (as Republicans get) for fund-raising; and they feel they need the same support from the media as Republicans get. Three big institutional reasons why it is a one-way process.

    And with the media practicing "it's OK if you're a Republican" for many types of dubious behavior by elected officials, there is no incentive for Democrats to fight back with all available tools. They feel they would be mercilessly criticized for "going negative" or "playing too rough," and don't feel they can make the argument that a double standard is being employed.

    Heard on the radio today a claim that Alan Grayson received zero $ support from the DNC in his unsuccessful re-election campaign last year. If true, there are some even bigger institutional obstacles to Democrats fighting back than I have listed above.

  7. Jeff,

    Not so much a theorem as one of my Iron Laws, which, well, make of them what you will. I don't really think that this particular thing is self-correcting, unfortunately, but it may fade over time anyway. The larger set of GOP pathologies I think may or may not be self-correcting; IMO that's one of the big questions out there about US parties and politics that needs a lot more study.


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