Don’t rewire filibuster rules

It is hard to disagree with the headline on Bill Galston and Mark McKinnon’s op-ed in The Hill on Jan. 17: “Time for up-or-down votes in Senate on appointees.” The recent, highly partisan tit-for-tat demeans senators and the president, intensifies the polarization of the parties and deepens the public’s cynicism about Washington. 

First, the Senate Republicans held hostage the nomination of Richard Cordray for director of the Consumer Financial Protection Bureau’s based not on his qualifications but on their unwillingness to accept the existence of the agency, which was created as a part of last year’s Dodd-Frank financial regulatory reform legislation.  

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Second, the president threatened to exercise his powers in a way the Constitution’s framers likely would have found surprising if not troubling when he circumvented the Senate’s “advise and consent” responsibilities by making a recess appointment.  

Third, the Republican minority forced the president’s hand by its use of sham “pro forma” Senate sessions every few days to avoid a congressional recess and thus frustrate Obama’s ability to make a recess appointment. 

Finally, in a highly controversial action, the president brushed aside longstanding precedent and ignored these sessions, treated the Senate as if it were in recess even if it said it wasn’t and made the recess appointments of Cordray and three members of the National Labor Relations Board.

The use of the filibuster for such unbridled obstructionism — in my judgment an abuse of the Senate rules — and the series of shenanigans that followed can hardly fill American citizens with confidence about our democratic institutions. 

I disagree, however, with Galston and McKinnon’s conclusion that the problem is the Senate filibuster itself.  While it is tempting, when faced with bad behavior by the Senate’s minority, rewiring the rules that make the Senate special and have served the nation well for more than 200 years will do nothing to address the underlying problem: the excessive polarized partisanship of senators themselves.  

Anyone who doubts this need only look across the Capitol to the House of Representatives, where majoritarianism has intensified partisan warfare to the point at which the minority is nearly impotent.        

Even worse, the authors apparently embrace the so-called “constitutional option.” This notion succumbs to the temptation to sweep away the filibuster and permit a majority to work its will while ignoring minority objections. It steps onto a very slippery slope by using a rationale put forward in 2005 by the Republicans, led by then-Senate Majority Leader Bill Frist (R-Tenn.), that would eliminate the filibuster on nominations, based on the willingness of the Senate’s majority to ignore its rules and the advice of the parliamentarian while sweeping away 200 years of Senate history by fiat. 

This was a plan that current Minority Leader Mitch McConnell (R-Ky.) has called a “dumb idea.”

They are right that the Senate can change its rules if it deems all nominations should be handled through a time-limited process and believes it’s a good idea that stalled nominations should lead to default confirmation without any action.

They mention the first day of the 113th Congress in January 2013, but there’s nothing magic in the Senate about its first days. Rules can be changed by majority vote at any time. Invoking cloture to end debate on a change in the rules, if necessary, will require a two-thirds vote under the Senate rules. If the proposal is compelling and nonpartisan, perhaps that is possible. But using a process that abuses the Senate’s rules to change them would be a historic mistake.

Rich Arenberg is co-author of “Defending the Filibuster: The Soul of the Senate,” written with former Senate Parliamentarian Robert Dove. It will be published by Indiana University Press next summer. He served on Capitol Hill for 34 years, working for Sens. Paul Tsongas (Mass.), George Mitchell (Maine) and Carl Levin (Mich.). He is currently an adjunct professor at Brown University, Northeastern University and Suffolk University.