Monday, February 11, 2013

Senate Reform and Blame for Nullification

Scott Lemieux blasts Democratic Senators today because they left the filibuster in place, thus allowing GOP nullification to continue in the case of the CFPB.

I have mixed feelings on this one, but to say that "the majority of the blame belongs" to Senate Democrats is wrong. The majority of the blame, if you need to apportion it, belongs to Senate Republicans who are practicing Constitutional hardball by ignoring the norms and precedents of the Senate and the political system. The problem with Constitutional hardball is that the only rational response is (1) for the other side to equally exploit every ambiguous rule, and (2) for the other side to attempt to codify things that worked reasonably well by norm. Neither of which is very healthy -- finding the perfect rules is usually pretty difficult. Basically, it's awful for the polity, and for democracy, and it's important to call out the people who are creating the Constitutional-level problem. Remember, it was certainly possible Republicans could have had a majority in the Senate now, and if so filibuster reform would do nothing about nullification -- but it would still be outrageous for a Senate majority to refuse to confirm any possible nominee for CFPB or other government agencies in order to shut them down.

Beyond that, I'm all for simple majority confirmation of executive branch appointments. As one who does believe that the best Senate would preserve a lot of influence for individual Senators and would limit the influence of the majority party, I still see no reason at all for supermajority confirmation on these nominations.

So I think that the Democrats were wrong not to press for it.

However, the blame here is shared by the person who has the institutional incentive to care about executive branch appointments: the President of the United States. Barack Obama has been pretty much AWOL on this. And while he obviously cannot order the Senate to reform, he certainly could press Democratic Senators to make exec branch confirmation easier; he also can bargain with Senate Republicans, including (to the extent that the courts will still let him) threatening a much more extensive use of recess appointments. Granted, that's more difficult now than it was in 2009-2010, but then again Obama didn't use them much then, either; nor did he make a public case that routine partisan filibusters of these picks is unprecedented and outrageous. No, a public case won't get most Americans to care about it, but it would certainly raise it higher on the priority list of Democratic activists and Democrat-aligned interest groups, and Senators listen to those folks.

The other point that's important to make (again, and again) is that there's no reason at all that Democratic Senators can't go back and threaten, now, that they'll revisit Senate reform -- soon -- if nullification continues. Reid should threaten it, and Obama should press for it. It doesn't matter that they haven't solved it yet; the problem continues, it's fairly easy to solve, and Democrats shouldn't tolerate it.


  1. I disagree here--the Republicans are playing hardball, but not Constitutional hardball.

    Pretend that Republicans had a majority in the Senate, and they refused to confirm--or even outright rejected--any CFPB appointee. That would piss me off, but I'm not sure it's out of line with the way the Constitution is set up--the framers meant for Congress to be very powerful relative to the President. Why shouldn't Congress nullify enforcement of laws it doesn't like--it's the body we task with making the laws in the first place! If Republicans had created a Fetus Protection Bureau that was basically set up to do things I hate, I would be delighted if a Democratic Senate majority refused to let anyone be appointed to it. If Republicans wanted to fill the imaginary FPB, they would have to take a majority in the Senate.

    The "hardball" part of it is that this is being done by a Senate minority. If that kind of behavior is normalized, then that means agencies could be blocked unless both parties approve of them. That's crazy. But it has nothing to do with the Constitution--it's just Senate rules. Which is entirely the responsibility of the Senate to set as they see fit.

    Given that--yes, I would say that the majority of the blame belongs to Senate Democrats. If the norm isn't working, then change the norm--that's how norms are supposed to work. A norm that's only followed by one side is worse than worthless. If our side is a bunch of suckers on this, why shouldn't the other side press their advantage?

    This is why I'm not very upset about the D.C. Circuit opinion of recess appointments. Yes, it makes things harder for us. But only because we let it. This is our fault--we've been fooled more than twice, so shame on us.

    1. I disagree. You're describing the current power play as it is unfolding in the Senate. The problem is that Congress has to govern. It must authorize spending that the country requires to function. The executive branch executes that funding.

      While the Constitution says that the Senate may "advise and consent" on certain appointments, 226 years of practice says that the executive branch asks enough questions to make sure that the individual being proposed is largely competent to perform their duties.

      Republicans have refused to allow anyone to run the ATF bureau for years now. Now they want to block the CTFB, and are refusing to confirm Secretary of Defense and the head of the CIA - why, exactly? Well, because they're mad. About being losers in the last election, probably.

      They believe that they are holding on to power. They are actually proving themselves incompetent at running the country.

  2. I don't believe there is anything the President can do to change this. It's herding cats; worst of all, it's herding someone else's cats, so you dare not disturb them too much.

  3. I wouldn't jump to the conclusion that the Obama White House has been silent on this, behind the scenes. I get the impression that Harry Reid is the key, and I mean that in a non-trivial way. I'm curious about what's up with him and would love to see some good reporting on that. If there has been I've missed it.

  4. Harry Reid has many ways that he could make Republican life difficult if he wanted to, up to and including Frist's Nuclear Option. He hasn't taken a single step towards that, which leads me to believe that he's perfectly content with the situation at hand.

    It's much easier to shrug and say "we don't have 60 votes, sorry!" than to vote against things he doesn't actually want passed. It's much harder, politically, for him to keep progressive ideas off the floor without the filibuster.


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