“This will kill the Senate,” thundered Mitch McConnell, rising in opposition to Democratic plans to reform the filibuster. Would that it were true! The Senate exists because the Founding Fathers, who hated the idea of a Senate, gave in to threats from small-state senators demanding disproportionate representation.
Sadly, Democrats are not about to kill the Senate. They’re not even going to kill the filibuster. What they’re threatening to do is to eliminate the newest and most abusive use of the filibuster. In addition to massively expanding the use of the filibuster to block legislation, Senate Republicans have started using it to block qualified executive branch nominees in order to block the execution of laws they find distasteful.
Senate Republicans object to existing labor laws and the Dodd-Frank financial reform law. But they also lack the votes to pass changes to them. Instead, they have announced that they will block any nominee to vacant spots in those agencies — not just those deemed unfit or ideologically extreme — which has effectively paralyzed them from carrying out their work, unless Obama agrees to change the laws to suit the GOP. Senate Republicans have managed to largely paralyze labor law and financial reform this way.
Congressional scholars Thomas Mann and Norman Ornstein have called this “the new nullification” — which is to say, a radical tactic to prevent the execution of duly passed laws. McConnell, unsurprisingly, loathes Ornstein, a consummate establishmentarian who has taken the unusual step of fingering Republicans in general and McConnell in particular as the primary agents of Washington dysfunction:
Senate Democrats are threatening to change the rules of the Senate to allow executive branch nominees to be seated with a simple majority vote. They’re doing it now for several reasons: It’s taken years for the excesses of this tactic to wear down Senate Democrats' inertia. The Senate just passed immigration reform and has no other pending bills that might be threatened if the place blows up. And Democrats are laying the groundwork for Obama to devote his term mainly to executing unilateral laws, not futilely trying to reason with Congress. Obama needs to staff his administration to do this.
In a fiery speech, McConnell made a series of arguments against this change. One is that Democrats should worry about what will happen when Republicans want to nominate people they don’t like: “They’re not even interested in what this would mean down the road when Republicans are the ones making the nominations.”
Well, yes, it would prevent Democrats from blocking a Republican president’s attempts to fill his own administration. Democrats did block numerous Bush administration executive branch appointments for various reasons, though never as leverage to force Bush to change the law. The next Republican president will be able to fill out his own administration with a simple majority Senate vote. Not so scary!
McConnell’s other argument is insanely Orwellian. The issue, he says, is just a handful of “illegal” administration appointments. There’s a short backstory you need to know to understand what an insane argument McConnell is making here. Presidents often respond to blocked nominees by appointing them when Congress is in recess. Congress blocked Obama from doing this by holding pro forma sessions during its recess, which Democrats also used against Republicans. Obama tried to circumvent that tactic by declaring the pro forma sessions (when one Republican was around to gavel in and gavel out) a sham. The Republican-majority D.C. Circuit Court ruled against this tactic.
Here is how McConnell puts it: "So this isn’t really a fight over nominees at all. It’s a fight over these illegal, unconstitutional nominees."
But of course they’re only illegal nominees in the first place because McConnell insisted he wouldn’t seat them without changes to the laws they carry out. The attempt to seat them during a sham recess isn’t the cause of the conflict. The cause is McConnell’s blocking of otherwise acceptable nominees in order to force Obama to accept changes to the law he wouldn’t otherwise sign.
The deeper subtext of McConnell’s argument is not one aimed at the public but at his fellow senators. It’s that the Senate is wonderful and unique, and any changes to its byways would threaten the character of the institution they all love so dearly. This is a deeply held belief by senators. In Washington, senators occupy a place of immense power and political security, catered to by sycophants at every turn, and basking across parties in their senatorial splendor and superiority to the common House. It is certainly true that, for the purposes of maintaining a dignified lifestyle for 100 senators, the Senate continues to function brilliantly. What’s very hard to defend is that the Senate functions perfectly as a vehicle for advancing the national interest.