The Nuclear Option and the Mark of Desperation

When Harry Reid blew up the Senate filibuster for all intents and purposes yesterday, he did so on behalf of his party’s and his president’s desperation. Desperate to change the subject from Obamacare, desperate to show their progressive base that they can still achieve big things, desperate to do something, anything, to change the evolving narrative of Democratic demise.

Make no mistake, this will come back to haunt Democrats, probably by January 2015, when, if Republicans are able to capitalize on their likely window to regain control of the Senate, Mitch McConnell will undoubtedly cast fiery retribution on the Democratic Senate caucus by approaching the cracked seal of Pandora’s Box and breaking off the lid entirely.  This means that the nuclear option, detonated for all to witness by Democrats, cannot be walked back or tempered in hope of seeing decorum or tradition restored. Hell hath no fury like a minority stripped of its constitutional minority protections, thus when said minority inevitably becomes majority, Katie bar the door. Democrats better look the Hell out, because when Republicans control the chamber again (and yes, it will happen with the 2014 midterms), there are going to be exactly zero qualms for applying Harry Reid’s procedural heresy regarding judicial nominations to legislation. So get ready for not one, but two bodies of Congress, each with majority rule, passing wave after wave of pro-growth, anti-progressive measure imaginable, along with drastic cuts to spending and the federal administrative state.  Obama will spend the last two years of his presidency feverishly vetoing Republican bills, many of which will likely just be drawings of giant middle fingers.

Are conservatives and libertarians to be happy about this? Of course not. As George Will put it, yesterday was “a melancholy day for American life,” because it strips the one institution in our government most accustomed to hearing and respecting the rights of the minority of their power to be something more than a simple majoritarian body. The House of Representatives serves a noble purpose, as majoritarian rule does have its place in a constitutional republic. But it’s not the only place. A republic is not a democracy for the very reason that majority rule by itself is not enough. Republics constrain the majority and prevent them from behaving tyrannically because they place constraints on majorities by allowing minorities to have useful mechanisms for slowing or stalling the agenda of an unbridled majority. The genius of the Senate is that it was always supposed to be “the cooling saucer” of Congress; the place where fly-by-night legislation from the people’s House would go to simmer and cool, whereupon reflection and ample deliberation, the emerging bill sparkled with the veneer of both consensus and careful calibration. No longer. What Senate Democrats (urged by a flailing and desperate President Obama) did yesterday was essentially end the Senate as we know it. Now it is just like the House, where pretty soon it will be legislation and Supreme Court nominees, not just executive judicial nominees, that are passed with simple majorities rather than 60 vote thresholds. In the short term, the cause of liberty will benefit while the cause of progressivism will suffer.* The looming and inevitable Republican majority will use the precedent unleashed by the nuclear option to further all kinds of conservative legislative and administrative goals (namely doing away with much legislation and administration), while progressives whine and screech as much of their beloved bureaucracy is voted away on simple majority votes, knowing in their lamentable sould that they have only themselves to blame.

So fine, from a Machiavellian/utilitarian perspective, hooray! The progressives just shot themselves in the face and will rue the day they opened the door for much of their agenda to be done away with by simple up-or-down majorities. But then, they too will ascend to power again one day, and then will proceed to institute all manner of further government expansion without the obstacle of needing a supermajority in the Senate. Maybe that’s the long view they’re taking. What is most discouraging though, is that the need for cloture will probably never be restored. It would be both incredibly noble and insanely foolish for a Republican Senate to reinstitute the proper function of the Senate on the day they regain power, for one reason: the progressives do not give a fuck about rules, decorum, tradition, or the Constitution. They just don’t. They want to use whatever mechanism they can, no matter its legal or constitutional merit, to advance the cause of social justice and continue in their everlasting quest of elevating the State over the individual. In this environment, one must make no illusions about the opposition’s intent. “Know thy enemy” means understanding that Democrats today are playing by different rules. If they can pack the courts, awesome. If they can cram legislation through, great. If they can increase Executive power to further implement their agenda, pay no mind to their previous squawking about an “imperial presidency.” They just don’t give a fuck about constitutional limits or authorities because they themselves do not adhere to any limiting principle within their ideology. To achieve utopia, it is always and forever more, more, more. These people will not yield to a document they view as a quaint novelty or forfeit their conception of “positive rights” because some old racist slave-owners happened to transcribe in lucid detail what were to be the limits of State power and activity.

So for those of us who appreciate the concept of liberty and understand the perils of statism, the near-future is going to present some interesting quandaries. Faced with a cynical and noxious power grab by our opposition, once back in power what are we to make of this new Senate reality where 51 votes is all you need? I guess my early hope is that we don’t act like progressives and froth at the prospect of achieving radical ends with radical, immediate steps. Yes, I’m not so naive as to suggest that we don’t throw the nuclear option right back in their face, where appropriate, but I do hope that we at least consider exploring a way to restore the fundamental rights of the minority to the Senate. But principally I am concerned about going too far, too fast. If the Bush and Obama eras have taught us nothing, it’s that aggressive overreach, whether in policies foreign or domestic, only lead to aggressive backlash. Our republic was conceived in incrementalism, and was meant to mature incrementally. It would be wise to remember that once Republicans are in charge of the Senate. But then again, one of the biggest institutional guarantees of incrementalism was gutted yesterday. History will not be kind to Harry Reid and progressive Democrats for hitting the red button.

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