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February 12, 2013 11:22 AM Senate Reform and Blame for Nullification

By Jonathan Bernstein

Scott Lemieux blasts Democratic Senators today because they left the filibuster in place, thus allowing GOP nullification to continue in the case of the Consumer Financial Protection Bureau.

I have mixed feelings on this one, but to say that “the majority of the blame belongs” to Senate Democrats is wrong. The majority of the blame, if you need to apportion it, belongs to Senate Republicans who are practicing Constitutional hardball by ignoring the norms and precedents of the Senate and the political system. The problem with Constitutional hardball is that the only rational response is (1) for the other side to equally exploit every ambiguous rule, and (2) for the other side to attempt to codify things that worked reasonably well by norm. Neither of which is very healthy — finding the perfect rules is usually pretty difficult. Basically, it’s awful for the polity, and for democracy, and it’s important to call out the people who are creating the Constitutional-level problem. Remember, it was certainly possible Republicans could have had a majority in the Senate now, and if so filibuster reform would do nothing about nullification — but it would still be outrageous for a Senate majority to refuse to confirm any possible nominee for CFPB or other government agencies in order to shut them down.

Beyond that, I’m all for simple majority confirmation of executive branch appointments. As one who does believe that the best Senate would preserve a lot of influence for individual Senators and would limit the influence of the majority party, I still see no reason at all for supermajority confirmation on these nominations.

So I think that the Democrats were wrong not to press for it.

However, the blame here is shared by the person who has the institutional incentive to care about executive branch appointments: the President of the United States. Barack Obama has been pretty much AWOL on this. And while he obviously cannot order the Senate to reform, he certainly could press Democratic Senators to make exec branch confirmation easier; he also can bargain with Senate Republicans, including (to the extent that the courts will still let him) threatening a much more extensive use of recess appointments. Granted, that’s more difficult now than it was in 2009-2010, but then again Obama didn’t use them much then, either; nor did he make a public case that routine partisan filibusters of these picks is unprecedented and outrageous. No, a public case won’t get most Americans to care about it, but it would certainly raise it higher on the priority list of Democratic activists and Democrat-aligned interest groups, and Senators listen to those folks.

The other point that’s important to make (again, and again) is that there’s no reason at all that Democratic Senators can’t go back and threaten, now, that they’ll revisit Senate reform — soon — if nullification continues. Reid should threaten it, and Obama should press for it. It doesn’t matter that they haven’t solved it yet; the problem continues, it’s fairly easy to solve, and Democrats shouldn’t tolerate it.

[Cross-posted at A plain blog about politics]

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Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.
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