Reid Drops Nuclear Bomb and His Party Will Rue its Fallout
Fresh off the disastrous rollout of Obamacare which Senate Majority Leader Reid and (now former) Speaker of the House Pelosi rammed through Congress using unconventional procedures and with zero Republican support, his extremist wing compelled him to make yet another ham-handed move which predictably will hurt his party in the long run more than it will help it. Since the issue has for the most part been poorly explained in the major media, let me explain what has happened and why I think this will prove a major miscalculation.
Briefly, since 1917 the Senate has permitted any member to speak as long as he wishes on any topic unless and until there is a vote to close the discussion ("cloture"). At that time a cloture vote, according to Senate Rule XXII, required a vote by 3/5 of the entire Senate. Filibuster and cloture rules are not constitutional or statutory, they are creatures of the Senate, which can change them or abolish them altogether. They have been changed twice. In 1959 the rule was amended to allow a filibuster to be cut off by a cloture vote of 2/3 of the Senators present and voting (rather than 2/3 of the entire Senate). In 1975 it was amended again so that cloture only required a vote by 3/5 -- that is 60% -- of those present and voting.
In 2005 a Republican Senate considered changing the rule to lower the number of votes needed to cut off debate. All the top Democrats vehemently opposed that, and the plan was scotched Here's Vice President Biden on the subject.
Here are Obama, Reid, and Hillary Clinton, arguing that changing the filibuster rule to allow cloture by majority vote will have disastrous consequences.
Why, Besides Partisan Political Expedience, Did Reid Do This?
As I noted, behind the scenes the leftmost wing of the Democrat party is smarting and pressed Reid to do this. Ostensibly, however, the impetus was the refusal of the Republicans to go along with a court-packing scheme to add three judges to the U.S. Court of Appeals for the District of Columbia. This court, because it hears appeals from federal administrative actions, is the most important federal court below the U.S. Supreme Court and it has been a hindrance to some of the administration's more lawless moves. The three nominees blocked before the institution of the new, less rigorous rule on cloture are Patricia A. Millett, Cornelia Pillard, and Robert L. Wilkins. Even with the new rule, Millett will not be confirmed before the Senate reconvenes on December 9. After that the other two are expected to be up for reconsideration. Behind them, as the Washington Post noted on Saturday, there are "189 Obama judicial nominations awaiting confirmation" and "53 Obama judicial nominations moving through the Senate." How many will make it through the Senate before the 2014 election results are in and a new (possibly Republican) Senate is sworn in is anyone's guess. Nor is it a sure thing that the House will increase the D.C. Circuit's budget to include what it considers the three new extraneous, political appointments.
The new rule does not change the 60-vote rule on Supreme Court nominations, reportedly because Reid could not get party members to agree to that nor does it cover legislation.
What Are the Countervailing Arguments to the Change?
Apart from the arguments made by others, then Senators Clinton and Obama and Senator Reid in 2005 argued the case against the kind of move Reid just made. Among the best general discussions against changing the rule now are these from the National Journal, Legal Insurrection, and the Wall Street Journal :
Majority rule is always in the immediate interest of the majority party. But there are three countervailing incentives that have stopped majority senators from supporting a change in the rules: ideological moderation, concern for the institutional power of the Senate, and long-term self-interest. The first two of those incentives have gradually weakened for political reasons. The third suddenly broke down for perverse psychological reasons.
For an answer to that question, we turn to behavioral economics. In his book "Thinking, Fast and Slow," which we quoted in May, psychologist Daniel Kahneman explains the idea of loss aversion:
When directly compared or weighted against each other, losses loom larger than gains. This asymmetry between the power of positive and negative expectations or experiences has an evolutionary history. Organisms that treat threats as more urgent than opportunities have a better chance to survive and reproduce.
That insight is the basis of prospect theory, which posits that people will take bigger risks in the hope of minimizing a loss than in the hope of maximizing a gain. The psychological impact of the loss itself clouds one's thinking about the risks of magnifying the loss. That explains why the Democrats went nuclear just as the perils of doing so multiplied.
Among the "perils of doing so" is, of course, the increasing possibility that the Republicans will win a majority in the Senate and will use this rule or abolish the filibuster altogether to ram through whatever they want.
Another is the peril to the Democrats' decades-long march to socialism, advances which so far the filibuster rules have protected whenever Republicans gain control:
The seemingly inexorable march towards economic socialism and political statism has been accomplished through legislative and judicial ratchets which, once established, were all but impossible to reverse in part because the filibuster helped lock in the agenda and those supporting the agenda.
Because of the ratchet, the nation moved only in one direction: Towards redistribution of wealth, and bigger government. Because of the ratchet, there was little or no hope of fundamental reversals.
Then, too, there is the likelihood that the House, controlled by Republicans, will use its powers to jam up the works:
Harry Reid won a great victory Thursday by ramming through the nuclear option, but it's a victory he'll pay for the rest of his career.
Republicans -- furious over Reid's nuclear maneuver -- have more incentive than ever to find new ways to make trouble. And so, while Reid now has more leverage to move most nominees, he'll find new hurdles when he tries to do just about anything else.
The onslaught started Thursday, when Democrats asked for unanimous consent to move legislation renewing severe restrictions on nonmetal firearms that escape detection from metal detectors. The legislation is largely noncontroversial, and it was initially expected to pass without incident.
But Alabama Republican Jeff Sessions objected to the unanimous-consent arrangement, saying that it was the wrong time to move the bill. Instead, the measure will languish at least until the Senate reconvenes Dec. 9, the same day the ban is set to expire. Also left to languish: a vote on Patricia Millett, the D.C. Circuit Court nominee whose blocked nomination provided the impetus for Reid to go nuclear.
And those two hurdles are just a preview of what's to come, as Republicans' tools to not just delay Reid's objectives, but to block them entirely.
The so-called nuclear option, which ends the minority's ability to filibuster judicial and executive nominees, does not bar filibusters of nominees to the Supreme Court. Now that Republicans have lost their voice on lower-court nominees, they're all the less likely to play ball when Obama needs their votes to fill vacancies on the country's premier judicial panel
None of this negates that, for now at least, Reid's successful change to the rules is a net victory for Democrats. The newfound freedom it gives Obama to shape the judicial system will affect the course of American government for years.
But Iowa Republican Chuck Grassley took to the Senate floor Thursday to warn Democrats of the price they'll pay if, and likely when, the political tide breaks in the other direction: "Majorities are fickle. Majorities are fleeting. Here today, gone tomorrow."
Democrat Senator Carl Levin -- despite the partisan tinge to his remarks -- will, I predict, be considered prescient for his refusal to vote with Reid on the change:
I strongly opposed their plans [in 2005 to lower the threshold for cloture], just as Senator Kennedy did, Senator Biden did, Senator Byrd did, and just about every Senate Democrat did, including Democrats still in the Senate today....
My position today is consistent with the position that I took then, that every Senate Democrat took then, and that's just back in 2005. That was to preserve the rights of the Senate minority. I can't ignore that.
Nor can I ignore the fact that Democrats have used the filibuster on many occasions to advance or protect policies that we believe in....
And let us not kid ourselves. The fact that we changed the rules today just to apply to judges and executive nominations does not mean the same precedent won't be used tomorrow or the next year or the year after to provide for the end of a filibuster on legislation, on bills that are before us, and on amendments....
No Senate majority before us has assumed to change the rules at the will of the majority. Before we do something that cannot easily be undone -- and we have now done it -- before we discard the uniqueness of this great institution, let us use the current rules and precedents of the Senate to end the abuse of the filibuster. Surely we owe that much to this great and unique institution.
Why Doesn't the New Rule Cover Legislation or the Supreme Court?
David Hawkings explains why, and his explanation is the only one which reveals the serious hidden aftershock to the Democrats of this intemperate and ill-considered move:
5. Why didn't Democrats eliminate filibusters on legislation?
There is nothing, procedurally, to prevent them from doing so. As Thursday's developments show, changes in the Senate rules, which are supposed to be fully debatable and subject to a two-thirds-majority vote, can effectively be changed by a simple majority.
But there does not appear to be any move afoot by the Democrats to take the next logical step by ending the filibuster altogether. The main reason is that they would reap no benefit from dropping that second nuclear bomb. Because nominations aren't handled by the House, the new rules give the Democrats uncheckable ability to give their president what he asks for. Not so with legislation, which of course has to be passed in identical form by both the House and Senate to become law. Democrats have nothing to gain by streamlining the system so their bills can get more quickly across the Capitol, because the current House GOP majority would still be likely to shelve the measures in opposition to the policy changes being proposed.
But, to drive the point home, Speaker John A. Boehner, R-Ohio, has declared that the House would not touch a bill, no matter its merits, if it had been passed by the Senate without having to run the current cloture-first gantlet.
6. Why the exception for Supreme Court nominees?
Democrats were willing to accept that someday a Republican Senate will be able to quickly fill lower-court vacancies with the super-conservative nominees from a GOP president. But they were unable to acquiesce in that same scenario for the highest court in the country -- especially at a time when its ideological balance is on a knife's edge, and when advocates for abortion rights and other liberal causes were expressing wariness of the risk.
The tradeoff is that, by preserving the filibuster as a tool to stop Supreme Court nominees, Reid has made it potentially significantly difficult for Obama to install a new justice for the rest of his presidency. Especially if an opening unexpectedly occurs soon, while the pain of nuclear winter is still palpable, Republicans would be very tempted to unite against anyone Obama might choose -- even if that meant leaving one of the court's nine seats empty for a time. [emphasis added. ]