THE STUMP MAY 9, 2012
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If you were trying to get a handle on what the Senate will look like over the next decade or so, you could have done worse than watch Richard Mourdock and Joe Donnelly make the rounds on television Wednesday morning. Mourdock is, of course, the man who just ousted Indiana’s longtime eminence, Dick Lugar, from the Senate. Donnelly is the Democratic congressman he’ll be facing in November. Mourdock fulminated against everything Lugar stood for—namely bipartisanship and civility in politics, but also the auto bailouts that saved tens of thousands of Indiana jobs. Donnelly did his best to claim the Lugar mantle and to focus obsessively on the economy. (He went so far as to say he’d walk from Lake Michigan to the Ohio River if it would create ten jobs, which requires a bit more knowledge of Indiana geography than I have, but sounds like more than a stroll.)
Given the forces acting on the GOP—both the Tea Party activists and the groups that bankroll primary challenges—it’s safe to say we’ll be seeing this dynamic a lot in the coming years: A Republican nominee who’s more conservative than his state ceding the political mainstream to his Democratic opponent. Which means we’ll probably see Democrats in the majority a lot more often than they should be, at least based on raw numbers. (Recall that the Senate is essentially gerrymandered for a GOP majority, since lightly populated states get the same two senators as New York and California.) The Sharron Angles and Ken Bucks and Christine O’Donnells of the world brought this about in 2010. And, according to Nate Silver, Mourdock is doing his best to help repeat the feat in 2012, turning a safe Republican seat into a near-tossup.
But the flip side of these Democratic majorities, as numerous commentators have pointed out, will be a much more disciplined, “rejectionist” minority (to borrow Dick Lugar’s term), one capable of slowing the government to a halt. Even incumbent senators without primary opponents will fall in line because they live in constant fear of hypothetical challengers.
My former colleague Jon Chait, for one, has been brooding about this for years. His basic anxiety is that the set of arrangements that allow the government to function aren’t laws handed down from God, or even iron-clad rules. They don’t compel either side to behave. They’re just a set of institutional norms—practices that members of the Senate have traditionally abided by, but which there’s no real penalty for flouting. Whereas a 51 votes have traditionally sufficed for passing legislation, these days Republicans routinely filibuster the most trivial measures. The Senate minority has traditionally allowed qualified nominees for federal agencies to win approval even if it disagreed with them ideologically. Today, seats on the boards of agencies like the Federal Reserve and the FDIC go vacant for years. The Senate minority has traditionally conceded defeat once a bill passes. Today, the battle for repeal starts the day a bill becomes law.
Not surprisingly, Chait sees nothing but foreboding in the Mourdock win. He believes it will only accelerate the norm-demolishing ways of today’s GOP:
The social norm against blocking qualified, mainstream Supreme Court nominees is one of the few remaining weapons the Republican Party has left lying on the ground. But if Republican senators attribute Lugar’s defeat even in part to those votes for Kagan and Sotomayor, which seems to be the case, what incentive do they have to vote for another Obama nominee? And then what will happen if he gets another vacancy to fill – will Republican senators allow him to seat any recognizably Democratic jurist?
I’m often as pessimistic as Chait about these things. After all, when you have a government built on norms and one party disregards them, what on earth do you do?
But, as it happens, it’s increasingly clear what you do, and Richard Mourdock of all people has provided the answer. “The fact is that you never compromise on principles,” he said on CNN. “We are at the point where one side or the other will win this argument. One side or the other will dominate."
Exactly right. The way for Democrats to respond—the only way the government can function—is to flout the same norms Republicans do. Or more precisely, since Republicans aren’t the only ones who’ve flouted norms in recent years (even though they’ve done it far more systematically), the majority party should be just as willing to flout norms as the minority party.
So, for example, when the minority party insists on 60 votes for routine legislation, the majority should embrace the most expansive reading of reconciliation, which allows bills to pass with 51 votes when included in the chamber’s budget resolution. When the minority party blocks qualified nominees to federal agencies, the president should make liberal use of recess appointments. If the minority insists on depopulating the courts by bottling up judicial nominees, the majority should invoke the so-called “nuclear option” and eliminate the judicial filibuster. For that matter, let’s end the filibuster altogether. Filibusters, holds, and the like aren’t really governed by anything with legal bite (like, say, the Constitution). Even fans of these procedural checks concede there’s nothing stopping the Senate from ditching them.
In effect, we’d be replacing government-by-norms with government by application of raw partisan power. And, at first blush, that sounds pretty spooky. But it actually has a lot to recommend it. Voters would know which party to blame for their frustrations (and to reward when things go well), unlike the current situation, when a president gets disproportionate blame for the country’s problems even though the other party has an interest in prolonging them. And even if you’re horrified by the politics by brute force, it’s a step up from a world in which one side employs brute force and the other acts as if the old norms apply.
Fortunately, thanks to Mourdock’s victory, it’s becoming increasingly obvious that there are only two alternatives: one-sided brute force or brute force all around. And, hard as it may be to believe for the bipartisan fetishists, Washington will be a much more functional place when the brute force rains down.
P.S. I should note that people like Matt Yglesias, Kevin Drum, Hendrick Hertzberg, and Harold Meyerson have all made variations of this argument over the years.
Follow me on twitter: @noamscheiber
23 comments
Absolutely. I have been saying this here for several years now, although in language far less polite than Mr. Scheiber's.
- roidubouloi
May 9, 2012 at 11:03pm
End the filibuster. It was workable when both parties had conservative, moderate, and liberal members. That arrangement was a vestige of the post Civil War era, when party identity had more to do with region than ideology. Those days are gone. We now have a conservative/reactionary Republican party, and a moderate/liberal/leftist Democratic Party. If Obama wins and Democrats hold the Senate, we should end the filibuster on the first matter of importance that presents itself. Send Joe Biden to preside over the Senate, rule every damn GOP objection out of order, and punch the bully (the GOP) in the nose. If Romney wins and the Repubs gain the Senate and keep the House, then our strategy should be to make THEM end the filibuster. 40 Democratic Senators should block anything and everything they don't like, until the GOP has no choice but to end the filibuster. That may sound scary, and yes they could do some real damage with a year or two to implement their agenda. But that's the point: they would no longer have an excuse to avoid voting on the things they have been promising for years to the religious fundamentlists and the libertarian fundamentalists. They would actually have to vote to outlaw abortions, end Medicare and Social Security, make savage cuts to transportation, education, health care, scientific research, arts, and national parks. They wouldn't have the excuse that "we have to compromise with the Democrats to get anything through the Senate". And the country would be repulsed, Dems would roll in 2014 and 2016. Well, I hope we won't have to test this out, but it makes sense to have a plan for 2013 either way. Also, we need to make sure everyone knows that the filibuster was not NOT "part of the Framers' design". The Senate was designed to be deliberative, true, but that was and is ensured by the staggered electoral terms, and the fact that they can't gerrymander their districts. End the filibuster, let the party with a majority implement its agenda, and be held accountable to the voters for it.
- bjones
May 9, 2012 at 11:41pm
I don't know if Obama and the Democrats have the nerve to end the filibuster or leave government-by-norms behind. But I do know that if voters keep nominating Tea Party wackos like Mourdock for the Senate, the Dems will eventually have a solid majority in that body again. I saw Mourdock in a interview, and he actually said that bipartisanship means the Dems coming completely over to the the GOP position--no compromise on anything ever. He spoke of "inflicting" his viewpoint on others. The crazy SOB talks like a Bolshevik, and the GOP has been taken over by nuts like him. Fortunately, Tea Partiers aren't going to win many seats in the Senate, which is not as extreme as the House. Keep those Senate nominations coming, Tea Party voters! That's probably the only pro-American, pro-democracy thing you'll ever do!
- magboy47.
May 10, 2012 at 12:51am
Good Grief. Someone at tnr actually saying what I've been saying for two years.. to the derision of most who comment on this site (roi and bj excepted). My addition-- which I know roi does NOT agree-- is that I don't think BHO and Reed are capable of, or have the personality, to provide the necessary opposition. [magboy--BHO and the Dems don't have the nerve--or the policies to do much of anything really effective] In which case, a Mittens win is NOT a disaster in that it would with near-certainty produce a Dem re-appraisal of Dem policies and leadership to support truly effective and committed Progressives that are Keynesian on economic polices. That Repub win would probably occur only if there is US economic downturn between now and November.
- drofnats1
May 10, 2012 at 2:05am
Right drofnats, electing Romney and a republican majority will result in the true progressive victory. Didn't people say the same thing about letting Carter go down to Reagan?
- Pnaut
May 10, 2012 at 2:47am
Great piece. Yes, the Democrats need to finally wake up to the reality of a bare-knuckles partisan Senate and stop pining for the comity of the good old days. As you argue, this will also make the functioning of the Senate more transparent and its members more accountable to voters who don't understand the intricacies of arcane Senate rules (which is approx. 99.8% of the public, I'd wager).
- interloper
May 10, 2012 at 3:36am
Actually, drof, I do agree about Obama, as I have complained here loud and long about his unwillingness to engage in almost any partisan behavior and his excessive willingness to compromise with the Republicans. Where you and I part company is your thesis that we should stop aiming for the best that can be achieved at this moment and more or less concede the field to the extremists so that we can await the counter-reaction. This is the old Bolshevik theory that things have to get worse, more extremely right, before the revolution can come. Maybe it is family heritage, but my parents were actually expelled from the American Labor party in the 1940s for declining to go along with a plan to support the more right-wing candidate in a local congressional election on just this same theory. They sent him home to reflect and read Lenin. At the next meeting, when asked, he said that Lenin didn't know anything about the local election. So they expelled both my parents. Decades later, my mother told me that it is not as funny as it sounds because it meant that they were shunned by everyone they knew, kind of like the Mennonites. My parents moved rightward to become liberal Democrats, although on his deathbed my father told me that he still believed that socialism was the best way (I abandoned that myself about the age of 17). I'm not buying the theory now any more than my parents did 70 years ago.
- roidubouloi
May 10, 2012 at 6:56am
"He went so far as to say he’d walk from Lake Michigan to the Ohio River if it would create ten jobs, which requires a bit more knowledge of Indiana geography than I have, but sounds like more than a stroll." Good grief. You all need to look up from your coastal navel gazing a bit. Anyone remotely familiar with 6th grade geography should know where the Ohio river and Lake Michigan are. But just for the record, for those who don't have a map, they are respectively the Southern and part of the Northern border of Indiana. Michigan to the Ohio is the entire North-South dimension of Indiana.
- IowaBeauty
May 10, 2012 at 8:31am
The Senate is absolutely the worst legislative body in the country in which to have a supermajority requirement like the cloture rule. It's already profoundly anti-democratic in giving Wyoming's 750,000 residents the same voting power as California's 36 million. Giving the smaller states even more clout with the cloture rule is insane. End the filibuster now.
- IowaBeauty
May 10, 2012 at 8:37am
The difference between good legislative action and bad legislative action isn't the action -- it's the goals being pursued. No, the "ends don't justify the means". But that doesn't mean good legislators must ham-string themselves in the name of a "fairness" and "compromise" that the other side doesn't even believe in anymore. If the Republicans are using 'bad' strategies to postpone appointments, then the Democrats are justified in using legal strategies to push those appointments through. The big difference between Bush-II and Obama is that Bush-II had the 3 WORST appointees he wanted rejected -- all the others were approved. Obama isn't even able to get his 3 BEST appointees through. That's not the same situation at all.
- AllanL5
May 10, 2012 at 9:14am
Lake Michigan's the northern border of IN and the Ohio River is the southern border, so Donnelly's picked the longest walk you can make without crossing the state line. Good on him.
- austinexpat
May 10, 2012 at 9:53am
roi. The Bolshi theory sometimes -- maybe often-- works. That is, the party in power when disaster strikes is often (usually?) voted out of power. And sometimes does not regain it for a LONG time, if ever. The Repubs have worked hard (often intentionally) to worsen current economic conditions.. and, abetted by BHO, they have a decent chance of succeeding. If their combined actions succeed in producing a crisis, the party in power will almost-certainly suffer badly. ... no matter how nice or bright a politician leads the party and how awful the opposition is. That is the lesson of Hungary (and Spain and Greece) today-- or Germany, Spain, Argentina, Italy 70-80 years ago. Bottom line-- If BHO and the Dems are in power and the Great Recession turns into a second Great Depression (google EU or reduced State spending), or (as would be the best current predicttion absent an EU economic collapse) the Great Recession continues anorther 3-4 years with BHO as Prez, then Progressive Dems (thee, me, and maybe a few on these blogs) will more than rue the day that Mittens didn't win in 2012. Or --A Modest Proposal-- pray for a war with... who cares? That's the one Keynesian spending program Repubs and many Dems would instantly support. Given global warming and their oil reserves, Canada might be the best choice --- except maybe they'd be surrender monkeys and we wouldn't spend enough? And we might be stuck with a set of Frankophile terrorists.
- drofnats1
May 10, 2012 at 10:21am
All of you that might be Progressive Dems: The best current bet woiuld be that BHO wins in November, but the Repubs control the House (and maybe the Senate). What exactly have Progressives gained? Ignore its probability of passing, what is BHO's economic recovery plan? All I've seen is small ball-- nothing that produces a significantly more rapid recovery. [Re-arranging the deck chairs on the Titanic really does slow the sinking-- but not much and doesn't solve the real problem.] And BHO's modus vivendi is start out inadequate and negotiate down from there. And this is going to change as a lame duck Prez?? I'd give higher odds on the existence of Santa Claus or the Tooth Fairy.
- drofnats1
May 10, 2012 at 10:38am
Does anyone know if Donnelly might beat Mourdock? I lived in Indiana for 7 years, and I'd move to Alabama or Mississippi before I go back to Indiana. That place is the Tea Party embodied. No one was more surprised than I when Obama won there in 2008. Also: waiting for Libref to jump in and start bashing "Karl" silly, for absolutely no reason.
- NR409654
May 10, 2012 at 11:09am
Roid, forgive the personal nature of the following comment, if it offends you, it isn't intended that way - but you seem to have lived a pretty interesting life!
- NR409654
May 10, 2012 at 11:18am
Not offended a bit, NR, but thanks for the courtesy in any case. All I can say is that my life has been full of unexpected twists and turns. Nothing has turned out as I imagined it would when I was young. Thankfully, what has actually happened has been a lot better, a lot more fun, and a lot more interesting than the product of my youthful imagination. drof, I wouldn't argue that the swings you describe don't occur, and may even account for many or most of the large political changes we have seen. But I think it is a case of being "too clever by half" as one of my mentors used to say. There is a great deal that is unpredictable in the world. I would rather see the Democratic party try its best to achieve what it can, to move public opinion forward, and to make things as good as possible, even if that is inadequate, while being mentally prepared (by constantly being partisan in thought while moderating one's deeds for maximum political effect) to seize the initiative when opportunity, especially great opportunity, arises. The risk of ceding the field in the hope of a boomerang effect is that you cannot control the damage. I prefer to hold the fort as best can be done.
- roidubouloi
May 10, 2012 at 2:08pm
This comment is a little late to the party (hopefully not too late), but I have my doubts about the Democrats' ability to abolish the filibuster, Senatorial holds and other instutional Senate obstructionism any time soon. All of those procedural tools are obscure to the general public and critiques of their use on things like appointments to cabinet agencies most people haven't heard of, or even the appointment of Federal judges or passage of legislation, is not something that is intuitively understood by most voters -- who are barely conversant in what is required and prohibited by the Constitution, much less by Senate rules. Educating the general public on the abuse of filibusters and holds is a time-consuming process, just like educating the general public on matters of fiscal policy and economics, as they are outside the normal realm of people's everyday experience. But wait, you say, why is it assumed that Republicans can push through elimination of filibusters if they want to (or come close to doing so), while Democrats can't? I think it's because an issue like filibuster reform is a clear case where Republicans have an advantage via Fox News and the rest of the right-wing partisan press. A party that tries to move the needle on things like obscure procedural issues greatly benefits from a press megaphone that would cast those issues (depending on the position of the party) as underhanded attempts to thwart elected majorities -- as Fox and talk radio did with Democratic filibusters of Bush's judicial nominees in 2005-06 -- or as socialistic attempts to destroy the American system of checks and balances brought forth from the mind of God and conveyed to James Madison and Alexander Hamilton in 1786. The megaphone would energize Republican voters, while Democratic voters and independents would lack a similar megaphone to explain their side of the story, saddled as they are with a mere shadow of a liberal partisan press and an MSM that is dedicated both to even-handedness and to playing up angles of "conflict". I am generally skeptical of claims of the all-encompassing power of Fox News and the rest of the right-wing media, but I would say that on this issue they have a built-in advantage over the opposition. The other thing to note is that it is easier to play defense with Senatorial reform than offense. Remember that, even with the Right-Wing Noise Machine braying all day about the "Constitutional Option" and their readiness to put Harry Reid in a pillory for opposing Republican judicial nominees, the Democrats were able to preserve the filibuster with notable help from some Republican Senators and some concessions to the White House. The MSM reported the issue as an extraordinary power play by the Senate Republicans doing the bidding of the White House, and that sort of simple narrative is enough to influence the harried minds of most voters that the Senate's rules are sacred and should not be tinkered with. Given that institutional advantage to the defense, and the presence of a partisan press ready to fight to the death on this issue, it would be awfully hard for the Democrats to win a fight to eliminate, or even restrict, filibusters, holds, recess appointments and the rest. It seems to me that the one way in which filibusters and holds could be swept away is if they led to something truly terrible for the nation or else utterly morally repugnant. After all, 15 years of Dixiecrat filibusters against civil rights legislation could only be overcome after racist Southern violence reached an apogee of horror in the Birmingham Church Bombing, such that even LBJ and moderate Northern Senators who were not prone to pushing their Southern colleagues got sick of it all. Similarly, if we were ever faced with another debt ceiling deadline or an economic decable that necessitated TARP-like legislation, and Republican Senators insisted on filibustering the bill -- and it lead to a real-live financial crisis, rather than just a brush with one -- then the filibuster could be shown as a genuine hazard to the peace and prosperity of Americans. But short of those extreme scenarios, I'm not sure if we will be so luck to be rid of filibusters and the other Senate machinery of obstruction any time in the foreseeable future. After all, many, many average people believe that government gridlock is what the Founders wanted, and who are we smarties to argue?
- wildboy
May 10, 2012 at 2:25pm
As I said, if the Democrats hold the White House, Senate, and House after 2012 (or 2014), then send VP Biden to the Senate in his constitutional role, to ram through whatever we want. Today's republican party is a bully, and the bully needs to be punched in the nose. It always stuns a bully when someone does that. If on the other hand, the Repubs are in charge of everything, then 40+ Democratic Senators should bring everything the republicans want to do to a halt, until they are forced to end the filibuster. Then it will be the Republicans who ended it, and when Dems win the next election after that (which we would), we could actually pass legislation, and be held accountable for its success or failure. On the debate above about the "Bolshevik approach", count me as anti-Bolshevik. I want Democrats to win it all this November, and pass a smart stimulus focused on infrastructure. But if that doesn't happen, then we make them end the filibuster. Either way, it must go.
- bjones
May 10, 2012 at 4:50pm
@magboy47. The Senate Republicans are totally OWNED by extremist Tea Party elements. Jim Demint, Rand Paul, Pat Toomey, Ron Johnson, Mike Lee, Marco Rubio, Tom Coburn, Jim Inhofe, Roy Blunt and I'm sure I'm missing a swath more (I would put Scott Brown as one of those wackos though he comes off as he's in it for the People, which is devious at best); this is a list of the most extremist Senators to ever hold office in history. I bet Mourdock even wins Indiana. The Tea Party gets people out to vote. Obama did in 2008, but people hated George Bush then and associated him with Republicans an voila, there goes the majority. Obama has smoothed things out substantially, but nobody will know how much until the Mourdock-Toomey wing controls things and makes people sour forever (hopefully) on Paul Ryanist governing. I agree that the Senate filibuster should be abolished, but lets say abortion is outlawed and theres a death penalty attached to it. Or, perhaps, you must own a gun or get shot and killed. These Republicans would pass shit like that. Gleefully, and there would be no one to stop them. Thanks God Dems held the Senate in 2010, because looking at the House votes, we would've had the abolishment of the Clean Air, Water and clean anything Acts repealed, ObamaCares repealed, Dodd-Frank sunk, Obama impeached, any clean energy initiative torpedoed for dangerous fringe fossil-fuel development with no penalties on excess pollution....you get the dystopian picture. The filibuster sucks, but we may need it.
- RedState
May 10, 2012 at 5:42pm
Redstate, I can't predict the future but I will buy you a beer (or mail you a gift certificate for one) if either Pat Toomey or Ron Johnson is re-elected in 2016. The other assholes you cite a probably safer bets for re-election in their respective sates, but those two gentlemen are far out on a limb with their respective states and that kind of thing generally gets corrected in the next election -- unless the Dems nominate someone inept against them, which is a always a possibility.
- wildboy
May 10, 2012 at 6:59pm
In his seminal book on conflict resolution "The Evolution of Cooperation" by Robert Axelrod, using a computer-based experiment, he identified four characteristics of strategies most likely to get to win/win solutions. The four characteristics are: 1) they are "NICE" (i.e. they start out offering to negotiate in good faith); 2) they are "PROVOKABLE" (i.e. a defection or bad faith is met with a like retaliation); 3) they are "FORGIVING" (i.e. after one round of retaliation, the offer to cooperate is renewed); and 4) they are "EASILY READ" (i.e. the other three characteristics are made readily visible and transparent). Obama and Democrats in general have done well enough on three of the four but have been woefully deficient on "PROVOKABLE". Republicans have been able to pursue win/lose strategies at no cost to themselves or their Party. If the Obama Administration were ever enrolled in Axelrod's theory, I'm confident they could come up with plenty of opportunities to test it with appropriate provokable actions, some of which, like abolishing the filibuster, have been mentioned here.
- JackR
May 11, 2012 at 10:23am
Thanks for the reminder, Jack. Sounds just like the groundrules for a successful game of tit-for-tat. Regards.
- roidubouloi
May 11, 2012 at 10:37am
@roi, I agree. There are too many variables and uncertainties to play the "lose now to win later" game. If we lose now, we should try to turn it into an opportunity to win later, but winning now is still preferable. My terror is that Romney will squeeze out a win, and the Republican Party's hatred of Keynesian economics will magically evaporate long enough for them to pass a big stimulus and get the economy going again--while eviscerating labor protections, environmental laws, civil liberties, and on and on. Romney will preside over a huge recovery, the stimulus which did the work will be flushed down the memory hole to join Ronald Reagan's tax hikes, and deregulation will get all the credit. Republican ideology, which was in tatters at the end of the Bush years, will once more be ascendant. Now, I may be overestimating the smarts of Congressional Republicans. There's a whole lot of genuine crazy in their caucus. But if their leaders are as ruthless and pragmatic as I think, and can get enough of their followers to go along, it could well happen. For the short term, we should try to get the most progressive government we can. If that means electing a center-right President instead of a far-right one, so be it. In the long term, we should try to shift the conversation leftward and rebuild the progressive institutions that have been ravaged over the past few decades.
- Dausuul
May 16, 2012 at 2:30pm