'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.

- 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:

2) Pay back. Some day, maybe starting a year from now, the Democrats will be back in the minority. And they will have two choices:

- They can do what the McConnell Republicans have done and filibuster everything and everyone, which would be "smart" for them but terrible for the country.

- Or they can not do that, which will be terrible for "their side" in partisan disagreements.

It's lose-lose, and it is the natural but destructive consequence of choices these past few years.

A staple of inspirational speeches is the invocation to be a "good ancestor," one who makes decisions that people 50 and 100 years from now will be grateful for. Classic example: Theodore Roosevelt with the National Parks. Classic example of the reverse: what Howard Jarvis did to California. And what the people who have routinized the filibuster are doing to all the rest of us.

I'll have more on "what happens when the GOP is back in control" in future installments. After the jump, a reader's message on that question.

A Republican reader responded to an earlier item about GOP use of the filibuster:

Should the GOP prevail in 2012 and we have president Romney stymied by a democrat filibuster again and again the same columns you have been writing about this issue will be written by frustrated partisans on the right. Both parties obstruct and thwart legislation they oppose if they can get away with it, if Obama had an approval rating of 60% rather than being mired in the low to mid 40's he could go to the country and rally support to get his legislation passed....The gang of 14 came into existence because the GOP couldn't get around filibuster threats to supreme court nominees and people like Estrada were tied up by the Dems and not given a vote etc......

The moral is if you want to get legislation passed be popular like Ronald Reagan,not unpopular like Obama is.Obama got what he wanted in his first 2 years because he had the majorities and he was personally popular,that is no longer the case.Your complaints are simply sour grapes!

Let's set aside the tautology that Obama would be more popular if he were more popular. As the chart below shows, when the Bush Administration was wroth about the threatened filibuster of the Estrada nomination in 2003, (a) there were well under half as many filibusters as there are now, and (b) the GOP treated them as a big-deal/ borderline outrage. Thus the talk about the "Gang of 14" and the "nuclear option."


But I agree with the reader on this point: what has been set in motion these past few years, nullification and all, will do damage for a long time to come.