Agreement in the Senate allowing confirmation of several of President Obama’s executive nominees perpetuates the pattern of eleventh-hour deal-making that has paralyzed Congress. The running joke these days is about the polls that show Congress to be less popular than a fill-in-the-blank villain of your choosing: North Korea, Osama bin Laden, the New York Yankees. The latest deal is not likely to improve things.
Senate Majority Leader Harry Reid had threatened to pursue a rules change with a simple majority vote that would ban filibusters for executive appointments. He did so in response to the Republican practice of using the filibuster to block routine business, in effect sabotaging the federal government.
One of the noteworthy acts of obstruction was the refusal of Republicans to allow a vote to confirm Richard Cordray as director of the new Consumer Financial Protection Bureau. Republicans had opposed the creation of the bureau, which is said to enjoy wide public support. It was the special project of Elizabeth Warren, who is now the much lionized senator from Massachusetts. But on that score, Republicans lost, and the Democrats won. Congress passed and Obama signed a law creating the bureau. Republicans, enacting the role of sore losers, took advantage of the unique rules of the Senate to prevent confirmation of the bureau’s new director.
The filibuster rules are sore loser rules. Even after the American people have cast their ballots, electing a Congress and a president, and even after the Congress and president have passed a law, the filibuster allows the loser to win by thwarting the action of the majority.
The present Congress has earned a historic degree of public disdain because Republicans in the Senate have used the filibuster rule to block almost everything. Instead of conducting the everyday business of state, holding hearings and passing laws, members of the Senate are forced to cater to the will of the minority, which can block the will of 59 senators by the insistence of 41 to use the filibuster.
The classic filibuster has a senator standing at his or her desk speaking for hours on end in order to block action. There is a Jimmy Stewart-like heroic quality to it. That isn’t the way the filibuster rule is used these days. Instead, Minority Leader Mitch McConnell lets it be known that he would use a filibuster to block a particular action and so his virtual filibuster is considered to be an actual filibuster and action on a bill or a nominee is halted.
Reid had lost his patience. He threatened what was called the nuclear option — a mere 51 senators could vote to change the rules, preventing the use of the filibuster on executive nominees. The Republicans made dire warnings about the tantrum they would throw. They warned Democrats that they would regret limiting the effectiveness of the filibuster when the day arrived that they were the minority.
Enshrining the power of the minority in the rules of the Senate is a perverse legacy of oligarchic rule. After all, when a minority has the power to impose its will on a majority, the process resembles the rule of landed aristocracy or slave-owning planters or elite financiers more than it does democratic rule. In our day, Republican insistence on its minority privileges has leveraged the power of Wall Street to slow financial reform that was meant to protect the broad American public.
Eventually, Reid got a compromise that averted the nuclear option. Most of the list of appointees will be confirmed, though he acceded to Republicans who wanted to block two labor board appointees.
What Reid did not win was an end to the pattern of legislative blackmail that Republicans have used to get their way. They are the kid who threatens to take his bat and go home unless he is allowed to pitch.
The other 17 kids want to play ball, but they need the bratty kid’s bat, so they let him pitch. The fact that he can’t find home plate means the game is a bust. But those are the rules — until someone changes them.
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