A Republican Doubles-Down on Nullification


Maybe it's something about being a U.S. Senator from South Carolina. Today on Meet the Press, Sen. Lindsey Graham flat-out declared the Republican intention to nullify the already-passed legislation to establish a Consumer Finance Protection Bureau.  According to the transcript, with emphasis added:

So this consumer bureau that they want to pass is under the Federal Reserve. No appropriation oversight, no board.  It is something out of the Stalinist era. 

The reason Republicans don't want to vote for it is we want a board, not one person, making all the regulatory decisions, and there's no oversight under this person.  He gets a check from the Federal Reserve.  We want him under the Congress so we can oversee the overseer.

It is embarrassing but apparently necessary to point out that the bureau has already passed, it is the law of the land, and if the Republicans "don't want to vote for it" or "want" it run a different way, their option under the Constitution is to change the legislation or restrict the bureau's funding. Instead they are acting as if the established rules for "how a Bill becomes a Law" do not apply if they do not "want" them to.

This strategy depends absolutely for its success on its not being called what it is: Constitutional radicalism, or nullification. This is an extension of the media normalization of the filibuster, through stories that say a bill has "failed" if it doesn't get 60 votes. And on this program, neither Senate Democratic Majority Leader Dick Durbin nor moderator David Gregory noted the extraordinary claim that Graham had just made, treating it instead as normal election-year positioning. Here is what immediately followed Graham's comments above:

MR. GREGORY:  Finally, Senator Durbin, as you look at the president's prospects, you look at the status of his approval rating, how much of a challenge does he face for re-election?
SEN. DURBIN:  Let me tell you, what the president has done, particularly in the last few months, where he has stepped up with a jobs program, supported across the board by the American people, and said to the Republicans, either join me in moving America forward and creating jobs, or face the next election for a referendum on whether we're going to return to the failed Republican economic policies, I think that is a clear contrast.  What he said in Kansas brought us back down to basics.

After the jump, several reader replies on the long-term effects of routinized filibuster and nullification.

Some readers suggested that the filibuster crisis might be resolved when, inevitably, Republicans regain control of the Senate and the Democrats are in the minority. One writes:

I believe what will happen will in some ways be worse, at least in the short term, if perhaps sadly better in the long term: if the GOP retakes the Senate after the 2012 elections, they'll simply abolish the filibuster.

In the long term, that will actually perhaps be for the good of our country, considering how the GOP has abused and short-circuited the legislative process. In the short term, however, the results are obviously likely to be terrible. Hopefully, the short term will truly be short, rather than relatively so, and the awful legislation the Senate is likely to pass will lead to a return to sanity for the Republicans and/or more and better Democrats getting elected. I'm not optimistic, unfortunately.


GOP innovation in obstruction and the general dessication of American politics has benefited from the fundamental asymmetry between the parties; see, e.g., Florida 2000, DeLay re-redistricting, etc....

Bullying tactics make more sense if the other side won't fight back. The basic idea of good gov't types, which has disproportionate influence on Dems, is that one can set precedents. That is, if the Dems didn't filibuster when they were in minority, then the GOP wouldn't recognize a new normal.  That's no longer true. Concessions are concessions, not precedents. 

That's also why I'm much less concerned than I'd expect to be by Glenn Greenwald style "what if we had a GOP president doing X" arguments . What a GOP president will or will not do is pretty independent of what Dems do, and thus Dem actions should be viewed without a "what precedent are they setting?" inquiry.

The filibuster situation can only be solved by both sides recognizing a crisis. Cf. the electoral college, which will only be fixed if the GOP gets screwed (somewhat structurally unlikely, given GOP edge in rotten borough states). [JF note: If ~50,000 votes in Ohio had gone the other way in 2004, the results would have been the reverse of the 2000 election. The national popular vote would have gone to George W. Bush, but John Kerry would have carried the electoral college. Among the reason to wish that had happened is that it would have given both Republicans and Democrats an incentive to dump the Electoral College.]


There's a possibility of reform, I think, once Republicans regain control of the Senate.

Democrats will almost certainly use the filibuster the same way that Republicans have--turnabout is fair play and all that. And the GOP is so brilliant at creating talking points and sticking to them. It'll be interesting to watch as the filibuster becomes yet another way the liberal establishment rigs the game against conservatives and thwarts the will of the people. When the Fox News victimization machine shifts into high gear, we might get some momentum toward reform. I supposes that's what passes for hope in our current politics.

And with a similar search-for-silver-lining:

Traditionally, Democrats have been responsible with the budget, responsible with legislation and responsible with the legislative process.  Indeed, it has repeatedly been true that Republicans have blown up the budget and "driven the nation into a ditch" and, when the electorate becomes fed up, brings in the Democrats to fix things.  It was part of Obama's speech making a couple years ago - "That's what you hired us to do".

So the expectation is that, once again, faced with Republican political leadership, Democrats would act in the best interests of the nation, grudgingly supporting right wing legislation with compromises in order to address real national problems.  That's the way it usually works - Republican intransigence, Democratic compromise.

But this time is not "usually".  The Republicans, if they take the White House and the Senate while still infected with the kind of ideological insanity we keep seeing in their candidates, will be trying to force through the most dangerous and destructive laws and regulations, and in order to act in the best interests of the nation the Democrats will have to use the procedural tools available to try to stop them, or at least to mitigate the damage.

The good news is that this might very well lead to the end of the filibuster, but as a nation, we'd have to survive the surgery and and see what kind of shape the patient was in when the time came, once again, for Democrats to take control and try to repair the damage...

Two more for now, on changes of rules:

In reading your post on nullification, a strange thought occurred to me. Why don't the Democrats, who have a proper majority in the Senate, simply nullify the Republicans' nullification of Senate rules?

It takes a second or two to wrap one's head around the concept, but -- not being any kind of authority on the constitutionality of the issue -- it seems that, if the GOP can play fast and loose with Senate rules, why can't the Democrats?

The Constitution states that "Each House may determine the Rules of its Proceedings..." It also states they can "...punish its Members for disorderly Behavior..."  

It is well established that a simple majority is all that's required in most Senate voting, with the exceptions distinctly set out by the Founders. Given that the Republicans have over-used the filibuster to the point of denying implementation of legislation properly passed by Congress and signed into law by the President, is it not a constitutional example of "disorderly behavior" and an example of unconstitutional over-reach by the GOP?

The filibuster is a Senate rule, not a constitutional rule. So, why can't the Democrats simply declare the filibuster null and void, for both parties? (I know that the Dems like/want to use it too, but it's become a rogue rule that has all but ground the Senate to a halt in doing its constitutional duty.)

I'm sure I'm all wrong in this, but I'm not at all sure why?


I know this won´t be easy, but my proposed solution is to amend the Constitution´s advise and consent clause: let´s change the Senate´s confirmation power to a veto power:  Every Presidential appointment (including judicial) becomes effective UNLESS the Senate, by majority vote, vetoes it within say, 100 days.

"Won't be easy" is the least you could say: any remedy to our governing dysfunction that requires a Constitutional amendment is almost impossible to contemplate. The question then is how to change the norms of governing and politics, under current Constitutional rules.