The Man Who Beat Lugar Is—Gasp!—Right

by Noam Scheiber | May 9, 2012

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. 

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