Unintended consequences

Sociologist Robert K. Merton popularized the “Law of Unintended Consequences.”  In his 1936 work on the subject, one category he identified “immediate interest which neglects consideration of the longer term” describes well the “nuclear option” which Senate Democrats employed in November to kill the filibuster for nominations (except to the Supreme Court.)

Driven by Republican obstruction blocking a number of nominations even without specific objections to the credentials of the nominees, Democrats used a parliamentary ploy to create a new precedent enabling them to end debate and confirm nominees with a simple majority.

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Using the new precedent they confirmed 17 of President Obama’s appointees at the end of the year, including 7 to the federal bench.  Debate was ended in each case by invoking cloture with less than the 60 votes explicitly required by Rule XXII. For the first 13 it took consecutive all-night sessions because Republicans insisted on the time for debate post-cloture to which they were entitled.  This extended the process for several days.  Much commentary focused on what’s seen as petulance by the minority.  Angry at the way Democrats unilaterally changed the rules, Republicans chose to inflict as much pain as possible. Sen. John McCain (R-Ariz.) reportedly told Majority Leader Harry Reid (D-Nev.), “I’m going to go kick the crap out of you.”

I expect that this effect will not survive for long, mostly because the delay inflicts pain on both parties and so clearly serves no defensible purpose. 

The nuclear option was accomplished by Sen. Reid raising a point of order that “the votes on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.”  The presiding officer President Pro Tempore Patrick Leahy (D-Vt.) declared, “The point of order is not sustained.” Then Democrats provided the margin to overturn the ruling on appeal. Even Sen. Leahy voted against his own ruling. This created a new precedent, in effect, changing the rules for cloture on such nominations.

There are many likely unintended effects.  The new precedent that any rule can be changed at any time by the majority inevitably will lead to the elimination of the filibuster for all nominations and eventually for legislative matters. Supreme Court nominations will not be excluded for very long.  The first time that a Supreme Court nominee is filibustered, this precedent will be reused and the rule disregarded.

The elimination of the filibuster for legislative matters will only await an issue important enough to the majority– lifting the debt ceiling to avoid default, for example, or in a Republican Senate, the repeal of Obamacare or blocking abortion.  In the long run, the newly empowered majority will do what majorities do, take control. The Senate will over time become a majoritarian body like the House where debate is limited and legislation is often considered with no amendments in order. In fact, Sen. Reid has already begun threatening further action on the filibuster.  He declared on the subject, “I’m not precluding anything. It’s just according to how we get along here.”

But, even before these future consequences take place, damage has already been done.  Presidential nominations cannot be effectively challenged by Senate minorities, even when legitimate concerns arise.

In 1986, Sen. Ted Kennedy (D-Mass.), then a leading opponent of the confirmation of William Rehnquist as Chief Justice, sought documents from the Justice Department. Kennedy believed the memos bore directly on the question of Rehnquist’s fitness to serve as Chief Justice. President Reagan invoked executive privilege to deny the documents to the Senate.

Kennedy in an op-ed cited similar struggles by the Watergate Committee which had demanded documents withheld by the Nixon Administration: “Sen. Sam J. Ervin was right when he [argued]… that no President may fairly demand confirmation of his nominee while refusing to divulge the information that senators reasonably may deem necessary to perform their constitutional role in the confirmation process…” Kennedy made his position crystal clear, “No documents, no confirmation.” 

The Reagan Administration relented and produced the documents. 

Remember that in 1986, Democrats were in the minority; Kennedy’s threat was only potent because of the existence of the filibuster. Not all such confrontations have so much hanging in the balance, but in the new Senate with simple majority cloture, where will the minority get the leverage to demand even necessary documents in the face of an uncooperative administration? 

Never again will an opposition senator be able to declare with confidence, “No documents, no confirmation.”

Arenberg worked on the staffs of former Sens. Paul Tsongas (D-Mass.) and George Mitchell (D-Maine) and current Sen. Carl Levin (D-Mich.) for 34 years. He is co-author of “Defending the Filibuster: The Soul of the Senate,” and is an adjunct professor of public policy and political science at Brown University.