From The Hill today:
I'm highlighting cases like as a way of documenting a "change in norms," in real time. (Thanks to reader CS for the tip.) The "rules versus norms" question is increasingly important for understanding what's happening to our system of self-government - including what's happening with the Supreme Court, as I'll get to soon.
As far as the Senate is concerned, the rules permitting bills to be filibustered have been in place for a long time. But until the past few years, the norms of Senate action had reserved the filibuster for truly exceptional showdowns. Then, starting five years ago, Sen. Mitch McConnell's Republican minority accelerated a preexisting trend and ramped up filibuster threats to historically unprecedented levels. (Chapter and verse in posts collected here). Since essentially every bill or nomination is now subject to a filibuster threat, a change of norms has de facto become a change of rules. And -- as I've mentioned a mere four or five million times to date -- the Constitution has been so thoroughly de facto amended that a sitting Supreme Court justice can say that it "takes" 60 votes to get Senate business done, and an authoritative newspaper covering Congress can say that a bill was "defeated" by a vote of 51 to 47, with 51 Senators voting "yes." This latest story does not even contain the word filibuster. Is this a matter of necessary journalistic compression? No. The headline above would have fit just as well if it read "Senate blocks Democrats' measure..." And the crucial explanatory sentence in the second paragraph could just as easily have said "Sixty votes were needed to break a filibuster on the measure."
Press coverage like this, or comments like Antonin Scalia's, obviously did not drive the transformation of Senate norms. But they certainly ratify it. There will come a time when "informed" readers have no idea that the Senate ever was able to pass important measures on "merely" a majority vote. And I'll save for another time the zillionth discourse on why the conversion of the Senate into a minority-veto body is destructive, no matter which party is in control.
Update: The day after the item with its misleading headline went up, it's still there, headline uncorrected.
