'A Process That Is Running Out of Control': The New Nullification Crisis

cordrayjpg-80a68266951d54c6_large.jpgBefore the episode recedes fully from the news, please read this item, by Jonathan Cohn on Thursday evening, about the extraordinary step the Senate Republicans took that day. Cohn says that the Republican minority's success in blocking a vote on Richard Cordray's nomination to head the Consumer Financial Protection Bureau amounts to "nullification," quoting Thomas Mann of Brookings to the same effect. They are right.  [As is David Weigel in Slate.] (Plain Dealer photo of Cordray.)

Nullification is obviously a loaded term. Historical context here: think John C. Calhoun, South Carolina, and struggles over federal/state rights in the years before the Civil War. But it is an appropriately dramatic term for the on-the-fly rewriting of the Constitution that the unified Senate Republicans have been carrying out these past five years.

Now the background, as I've touched on repeatedly starting two years ago.

- The U.S. Senate was never designed to be a "supermajority" body. You can look it up. The U.S. Constitution created an elaborate set of balanced powers; but within that model, the Senate was assumed to run by majority rule. The Constitution set out the few specific exceptions. Treaties require a two-thirds majority for ratification; two-thirds of each House must vote to override a presidential veto; when a president is impeached, it takes a two-thirds Senate vote for conviction; and so on. Otherwise, the Senate would pass or reject measures by majority vote, with the Vice President empowered to break an exact tie.

breakingthefilibuster-thumb-454x283-31546.jpg- Since early in the Republic's operation, the filibuster became another exception -- but one that until recently was actually exceptional. A minority could go all-out to block certain bills or nominations, but not every proposal every day. Again you can look it up. An outsized share of all bills and nominations blocked in all of U.S. history have been in the past five years. It was five years ago that Democrats gained 51-49 control of the Senate in the mid-term elections of 2006. Once the Republicans moved into the minority, they filed filibusters at a five-times-higher rate than by either party over the previous century (figures here).

- This week's thwarted vote represented a further step in Constitutional revision, in that the minority was not simply trying to keep a bill from being passed. Instead they were openly trying to keep an already-approved piece of legislation from taking effect -- they were nullifying it. To simplify the story: the legislation in question established the Consumer Financial Protection Bureau, often described as Elizabeth Warren's brainchild. President Obama shied from nominating Warren herself, who had become "polarizing." The Republicans have nothing against the replacement nominee, Richard Cordray, except that they don't want his agency to exist. Thus the blocked vote on his nomination. As Senator Orrin Hatch put it to the New York Times:

"This is not about the nominee, who appears to be a decent person and may very well be qualified," said Senator Orrin Hatch, Republican of Utah, according to the Associated Press. "It's about a process that is running out of control."

Out of control indeed. Apart from the short-term distortion of processes of self-government, here are two longer-term problems.

1) Distortion of discourse: The filibuster was meant to be exceptional, but it's become so routinized that press reports often say that a bill has "failed" -- rather than that it "was blocked" -- even if a majority of Senators vote for it. See some previous examples; you'll find more in each day's news. Here is an eye-opening illustration of minimizing the difference in recent years, but even that story pointed toward the second problem:

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James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

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