Wednesday, June 19, 2013

The nuclear option

Senate Minority Leader Mitch McConnell thinks it is completely wrong that Majority Leader Harry Reid is threatening to disallow any more filibusters on President Obama's judicial appointments. Reid's plan to change Senate rules is wrong, according to McConnell, even though it is exactly the same threat that McConnell himself made back in 2005, when Senate Democrats, then in the minority, were filibustering more of President Bush's appointments than the Republican majority at that time thought was appropriate.

Anyway, if McConnell so disapproves of Reid's plan to pull the so-called nuclear trigger, does that mean he has learned his lesson from when he threatened to do the same thing himself? Does McConnell now disapprove of using the power of the majority to change the rules? Well, maybe only if Reid is the one doing it. If Republicans ever take back majority control of the Senate, McConnell and other Republican leaders say, they will show the Democrats just how wrong it is to change the rules to end filibusters for judicial appointments, by ending all filibusters. That's right, and  here's McConnell's exact quote: “It would be naive to assume that you could break the rules of the Senate in order to change the rules for the Senate only for nominations. There would be a widespread clamor across our conference, where we to be in the majority, to take that precedent and apply it to everything else.” In other words, McConnell and the Republican Senate minority think that using the power of the majority to make majority rule the rule is so bad, they might just have to make it the rule in every case if they ever come to power. Or according to Senator Alexander,"if Democrats figure out a way to do anything they want with 51 votes, Republicans can figure that out too. And if we're in charge, we'll do it."

Sounds like the Republican minority is not exactly admitting that their invocation of the filibuster for nearly every important piece of legislation proposed in the past four years--a record that is unprecedented in American history--was a tad abusive. It sounds more like old fashioned payback. And an illustration of the principle that principles change depending on who is in power. If you're in the majority, you extol the virtues of democracy and majority rule. If you are in the minority, you defend the principle that the function of the Senate is to protect the interests of the minority.

The only way to agree on reasonable rules that would limit abuse of the filibuster would be for Senate leaders from both parties to adopt the Rawlsian veil of ignorance and come up with rules that both sides could live with whether they are in the majority or the minority. Otherwise we are in for an endless cycle of payback. On the other hand, if payback means that we get closer and closer to eliminating the filibuster entirely, and permitting the majority party to adopt its program and take responsibility for it, is that a result we should be afraid of?

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