Rebooting the Senate

If it ain’t broke, don’t fix it. That’s the conservative philosophy in a nutshell – things are working well enough, pretty much, and if you’re unhappy with that, learn to accept your unhappiness. Unhappiness is better than catastrophe. Attempts to change things, to do something else entirely, too often end in tears. Think of it like a kid taking apart a watch that’s running a bit slow, to see how it works and what can be done. The kid can never get the watch back together again of course – there are too many tiny parts, some of which roll off the table and get lost, so reassembly is quite impossible, and now, damn it, no one knows what time it is. Conservatives think liberals are like that with public policy. They should leave well enough alone – by which conservatives mean “good enough” or “close enough” on matters like financial regulation and civil rights and traditional marriage and healthcare and so on. It’s all the same. Things aren’t perfect – maybe lots of people are getting hurt badly because of this policy or that – millions uninsured or unemployed, or both, or working three jobs but living in poverty with no hope, ever, for a better future – but any fix will only make thing far worse, and thus not really fix anything. That’s what always happens. That’s the conservatives’ experience in real life. It’s the status quo or chaos. There’s no third choice.

Liberals don’t think that way. The status quo usually sucks – too many people are hurting for no good reason. They aren’t inadequate godless sinners with no sense of personal responsibility – they’re doing their very best and probably going to church too – so it’s time to fix things. The fix may be messy, and yes, it may create a bit of chaos, initially, but things can be adjusted along the way, as necessary. That’s what’s happening with Obamacare – it’s not falling apart. It’s being implemented. That’s a process – and the healthcare system really was broke. Don’t fix it? That was not an option.

Modern life is against liberals in these matters. We live in an age in which when something is broken we’re really at a loss. No one knows how things work, and there’s no taking them apart to fix them. Automobiles have been like that for thirty or more years now – there are simply mysterious sealed boxes under the hood – and your computer is certainly like that. It freezes. The keyboard is useless. The mouse is dead. Is there a software conflict? Did something in high memory not unload after it did what it was supposed to do, and you ran out of addresses in random access memory? Who knows? You can’t fix it, so you reboot – you cut the power and then fire it up again, and everything is fine. The electronic enema almost always works – but you’re no wiser. Modern life is a mystery.

This sort of thing can leave you more open to conservative arguments. You know, things are complicated, no one knows how they really work, so leave well enough alone. That is, after all, how most people approach life these days – after a time you really don’t want to know the details of anything. There’s no point. Nothing can be fixed these days.

It’s useful to have people think this way, or at least it’s useful to conservatives. You can get away with all sorts of things, like getting your way and ruining everything liberals want to try, while in the minority and generally reviled by the majority of Americans. That’s what the Senate filibuster is all about. Everyone knows the Senate gets nothing done now – the judicial system is falling apart because they will not confirm any judges Obama nominates at any level, and key federal agencies cannot operate, as they won’t confirm any heads to those agencies Obama nominates, and next to no legislation ever get passed. The modern version of the filibuster is the Senate rule that no item can come to a vote, where it can be passed by a majority of votes, unless there is far more than a majority, sixty votes, to allow a simple majority vote. The Democrats don’t have sixty votes. The Republicans, who always hang together, can stop a vote on anything and everything, which they have done. Nothing at all gets done. Obama cannot govern.

It’s a neat trick, and no minority party has ever done this before – stopped the nation’s business, cold, because they can. Obama has faced more delays and obstruction on his judicial nominees than any of the last five presidents, combined, according to this recent nonpartisan congressional report – but it’s complicated. Gregory Koger, a political science professor at the University of Miami, explained in a this lengthy analysis that “obstruction is so institutionalized in the modern Senate that labeling some action a ‘filibuster’ is like handing out speeding tickets at the Indy 500.” It’s not that rare occasion when someone with his or her principles stands up and talks forever, passionately. It’s just how things are done now. You notify the Senate majority leader that you have your forty votes to keep whatever it is from an actual floor vote on its merits, and the majority leader nods – there’s no point proceeding. It’s the silent filibuster – very efficient and quite civilized, and now used on all matters before the Senate – which means the minority Republicans now control the Senate. They can’t get done what they want done, but they can stop all Senate business, and do, so the other side cannot do a damned thing they want.

This means the Senate is broken. It might just as well not exist, but then most Americans probably see this like their computer that freezes up. Something is going on inside that you cannot really understand – odd rules these guys made up long ago, because the Constitution says the Senate is supposed to make its own rules – which is something you probably don’t want to understand. All politicians are jerks, after all, and Republicans and Democrats are probably equally to blame for this freeze-up, so maybe it’s time to pull that plug on them all. A hard reboot always works, except this is really an issue with the Republicans. They’re doing something no one has done before. They made what was rare, and only sometimes marginally useful, standard procedure. They froze the system.

Unfortunately, there can be no reboot. Senators serve six-year terms and every two years only a third of them come up for reelection, most of them in safe seats. There’s no way to toss all the bums out, or even select Republicans. We’re stuck with this.

That means we’re stuck with a government that can’t work, which somehow finally became unacceptable:

Senate leaders struck a tentative deal in the 11th hour to confirm seven presidential nominees to executive positions without the use of the nuclear option.

In short, Republicans would confirm nominees to all seven positions, a big concession for the GOP. But in a concession for Democrats, they would replace two recess-appointed nominees to the National Labor Relations Board – Sharon Block and Richard Griffin – with new nominees under the following condition: Republicans pledge to confirm any two replacements by President Obama to the board by Aug. 27.

The nuclear option was a kind of hard reboot – change the Senate rules, which can be done by a simple majority vote, to eliminate the filibuster. That was the threat, but not carried out. The threat – to pull the plug – was enough to get these few folks confirmed:

Reid announced on the Senate floor Tuesday morning that there was a tentative deal, less than an hour before procedural votes on the nominees were to begin. He said was he was “confident” about its prospects and thanked Sen. John McCain (R-AZ) for spearheading the compromise effort.

“We still have a few more i’s to dot and t’s to cross,” he said, mentioning that he still plans on talking to Vice President Joe Biden and Democratic leaders. “It is a compromise. I think we get what we want, they get what they want.”

The nominees who would be confirmed under the deal are Richard Cordray to run the Consumer Financial Protection Bureau, Gina McCarthy for the Environmental Protection Agency, Tom Perez for the Labor Department and Fred Hochberg for the Export-Import Bank. Under the terms of the deal outlined by Reid’s office, Mark Pearce would be confirmed to the NLRB while Block and Griffin would be replaced.

It’s something, and Matthew Yglesias puts it this way:

The background is that Republicans had been filibustering Barack Obama’s nominee to run the Consumer Finance Protection Bureau and two of his nominees to the National Labor Relations Board. Those vacancies had been making it impossible for those agencies to exercise their full legal authority, and since Republicans don’t really believe the rules the CFPB and NLRB enforce should exist, they were fine with that. Reid threatened to alter the Senate rules to make it much harder to block presidential appointees, and in order to get him to withdraw the threat, Mitch McConnell agreed to back down. Obama’s CFPB director will be confirmed, and as a face-saving compromise the Senate will confirm two other people to the NLRB if Obama agrees to withdraw the two he nominated previously.

What makes it a win on all counts for the Senate Democrats is that in exchange they’re not really giving anything up. The threat of changing the rules is still with us.

That doesn’t mean it was a nasty business:

Shortly after the agreement was announced, the Senate voted 71-29 to advance Cordray’s nomination to lead the CFPB – a good sign that the deal will hold. Seventeen Republicans voted in his favor, some of whom had signed a letter back in February pledging not to unless Democrats agreed to enact structural reforms to weaken the agency’s regulatory authority.

“Senator [John] McCain frankly initiated these calls because he was so eager to avoid having a blow-up on the rules,” Sen. Chuck Schumer (D-NY) told reporters on Tuesday. “We kept batting things back and forth as to what could please his side and what could please our side. And we came to a mutual and happy accommodation.”

It was all sweetness and light, except at Talking Points Memo, Sahil Kapur notes that it wasn’t:

Although McConnell and GOP leaders touted the fact that they persuaded Democrats to agree to replace two recess-appointed members to the National Labor Relations Board – something they have demanded for months – the real NLRB battle was a proxy for whether the minority could use the threat of a filibuster to force changes to the law that they couldn’t achieve through the regular legislative process. Democrats won that battle.

McConnell had also demanded that in exchange for confirming seven nominees, Reid agree to drop his threat to go nuclear down the road. Reid refused, and thanks to a bipartisan effort led by Sen. John McCain (R-AZ), secured enough Republicans to agree to confirm nominees to the seven positions anyway. McConnell downplayed that fact to reporters Tuesday and said McCain, among others, had been “helpful” in averting the nuclear option.

Jonathan Chait puts it this way:

The deal was brokered by John McCain, who undercut McConnell and is fully emerging, yet again, as his old centrist self. Exactly what happened to flip the switch in McCain’s brain from “Obama Hater” back to “McConnell Hater,” it is hard to say. Whatever it is, the old-new McCain is back again, which seems to be a significant development, given Obama’s inability to find any Republicans who aren’t terrified of working with him.

That is odd, but McCain is an odd old man, but Sahil Kapur also notes that this wasn’t a total win for the Democrats:

Pro-reform sources say they lack the votes to put an end to filibusters of potential judges, in part because pro-choice Democrats fear that a future GOP president may fill the courts with conservative judges that they’d be powerless to stop from rolling back abortion rights.

When Reid was asked Tuesday afternoon about the fate of three pending nominees to the powerful D.C. Circuit Court of Appeals, he was circumspect.

“We’ll take those one at a time. We’re talking about executive nominees,” he said. “Those are going through the process but we’ll see. … I think there’s a good feeling in the Senate.”

And legislation can continue to be filibustered by Republicans as a matter of course – sometimes to be thwarted entirely (such as the DREAM Act of 2010 and gun control legislation of 2013) and sometimes to be used as leverage to extract concessions. That remains a huge redefinition of the Senate minority’s power that has reached unprecedented heights under McConnell, and which Democrats still have no answer to.

This wasn’t much of a fix, except Ezra Klein reported this:

Democratic aides are gleeful. “CAVE,” is how one described the Republicans position over e-mail. They’re getting a vote on every major nominee and agency they wanted. And remember, the aide warned, “This has to be the new normal and we reserve our right to change the rules if the change doesn’t stick.”

This will be the new normal. It will be the new normal under Democrats and then it will be the new normal under Republicans. The Senate stopped short of actually ending the filibuster against executive-branch nominations today. But the effect might well be the same.

The Senate didn’t actually go nuclear today. But the majority took out a nuke, put it on the table, and made clear they can detonate it whenever they feel like.

Cool, but at the New Republic, Molly Redden suggests here that Harry Reid’s filibuster reform proposal “is so modest that you could fairly construe it as a return to the status quo”:

It wouldn’t interfere with the minority’s ability to prevent a piece of legislation from coming to a vote, which members can do today without even staying on the Senate floor. And it doesn’t threaten the talking filibuster, of “Mr. Smith Goes to Washington” fame, which Senator Rand Paul used to such spectacular effect this spring. … Let’s not pretend that Reid’s choice to eliminate the filibuster in one narrow instance would organically, inevitably lead the Senate to eliminate the filibuster altogether. Those are separate choices in which the majority party will perceive separate stakes. As for whether the Senate could come to resemble their malfunctioning counterpart, it would be a false equivalence to make believe that that’s the rules’ fault.

Yes, there’s no filibuster in the House, and they can’t get anything done either. It’s not the rules, but Sarah Binder offers this:

I think it’s important that Reid appears to be narrowly tailoring a rule change to apply only to executive branch nominees (and perhaps only after a nomination has been pending on the executive calendar for a set length of time). When asked by Congressional Quarterly’s intrepid Senate reporter, Niels Lesniewski, about what Reid would do when contested judicial nominations came to the floor in a couple of weeks, Reid refused to expand the scope of conflict to judges: “This is focused very concisely…This is not about judges…This is about presidential executive nominees.”

Why was Reid so adamant about limiting the reach of a rule change to executive branch nominees? A narrowly tailored change might make his nuclear gambit look more like previous episodes of reform by ruling. It might also make it easier to secure the support of 51 Democrats.

He was being careful, but Mark Kleiman wishes he hadn’t been:

Naturally, Republicans threaten retaliation. If the Democrats act now to make Executive Branch nominations confirmable by a simple majority, they will do the same, should they ever regain a majority, with judicial nominations and ordinary legislation too. I say, “Bring it on!” in the long run, the progressive cause is strengthened by having fewer veto players.

It’s understandable that some Senate Democrats want to solve the current crisis with as little damage as possible to their own power and that of their successors. That’s why Reid plans to move ahead with a rules change covering executive nominations only. But the Republican threat of retaliation – the one sort of Republican utterance that is invariably sincere – makes the proposed strategy of limited rules change incoherent. Since the Republicans will retaliate against a limited rules change with a comprehensive rules change, Democrats will never again get any benefit from being able to use the filibuster. So, in a rational world, having been forced to use the nuclear option to move the current batch of blocked confirmations they’d use it on everything at once. There’s no point in getting a little bit pregnant.

Alas, Reid seems to have the votes for a partial reform but not for the whole thing. And I think he’s right to take half a loaf, if that’s all he can get, rather than no bread. But we will all live to regret the Senate Democrats’ failure to dare greatly.

Kleiman, however, suggests all of this is not what it seems:

There’s no polite way to put this: the nuclear option is cheating. The Senate rules, adopted at the beginning of each session, provide that the filibuster rule can be changed only with a 67-vote super-majority. Adopting such a rule is within the constitutional powers of the Senate. (There’s a claim that since the Senate is a “continuing body,” with only a third of its membership replaced each session, the old rules are binding on the each new Senate, the old rules remain binding on each new Senate, but that interpretation would give a transient Senate majority the power to permanently alter the Constitution, which can’t be right.) So there’s no way, within the rules of the Senate, that the Democrats can impose majority rule in mid-session. But (as the Texas Senate Republicans just demonstrated in the Wendy Davis abortion filibuster) any ruling of the chair, no matter how transparently wrong, can be sustained by a simple majority. And that’s Reid’s plan. He’s going to propose a rules change, Joe Biden as the President of the Senate is going to over-rule clearly valid Republican procedural objections, and (apparently) there are going to be 50 votes plus Biden’s casting vote to sustain that false ruling. Hey, presto! No filibuster for Executive-Branch nominees.

Is the cheating justified? I think it is. When a minority abuses its procedural rights with the stated intention of making it impossible for the government to function as the laws provide, there’s a strong case for extraordinary measures.

So someone took extraordinary measures. The government should function as the laws provide, so it was time for a bit of a reboot – but then we live in an age where when something is broken we’re really at a loss, and all this seems so arcane. The nature of senate rules is about as understandable as why your computer freezes when there are address conflicts in the random access memory, or the software is addressing the wrong dynamic link library, or a given registry address is corrupt.

What? Don’t worry about it. A hard reboot almost always fixes everything. And the status quo – frozen in place – was unacceptable.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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