Nov. 21's vote by the Senate to permit presidential nominees -- with the exception of the Supreme Court - to be confirmed by a majority vote without undergoing a filibuster, signals the end of twenty years of democratic paralysis and constitutional malformation.
In January 1993, as Bill Clinton's inauguration was being planned, I asked then New Jersey Senate Bill Bradley, "What are the Democrats going to do about the Senate rules?" When Bradley told me, "Nothing, because traditionalists in the Democratic caucus like the filibuster," I worried out loud that the Republicans would then feel free to knee-cap Clinton's Presidency with obstructionism. After all, Senate Minority Leader Bob Dole had already announced his intention to do exactly that.
On election evening, and in more detail on the second day of Clinton's Administration, Dole made it clear that he would use every tool he had to block Clinton's program -- including one that had lain relatively unused since the Senate inadvertently created it in 1975 -- the silent filibuster, by which merely refusing to agree to vote blocks action on the Senate floor. Dole mounted what political scientist Alan Ehrenhalt's argued "amounted to an unreported constitutional usurpation," beginning with a successful filibuster of Clinton's economic stimulus bill, but going on to tie the 103rd Congress in knots on virtually every major piece of legislation -- an unprecedented use of the road-block not to cool legislation in the Senate saucer, but to simply dump it on the ground after it came over from the House.
In the fall of 1994, with a Republican tidal wave building, I urged Vice President Gore that the president should pick five key pieces of his agenda and call the Senate back into session until it gave them an up or down vote. "Make obstruction the issue," argued. "Otherwise Clinton's failure to pass legislation becomes the story."
"It's a strategy," Gore conceded, "but our Senators want to get home and campaign." And so the Gingrich revolution came.
During the Bush years, Democrats resorted to the filibuster more often than anyone had before the Dole coup, but not as often as the Republicans had -- but they did for the first time begin filibustering judicial nominees.
Indeed, Bob Dole himself hypocritically blasted this new expansion of the filibuster. In a New York Times op-ed he argued "This 60-vote standard for judicial nominees has the effect of arrogating power from the president to the Senate. Future presidents must now ask themselves whether their judicial nominees can secure the supermajority needed to break a potential filibuster. Political considerations will now become even more central to the judicial selection process. Is this what the framers intended?" But, of course, Dole's own use of the filibuster to block legislation also arrogated power, from the Senate majority to the minority.
Now the Senate became, in essence, a killing field for anything the majority proposed, although until 2009 the operating principal was still that the filibustering minority was seeking leverage, not total inaction. But when Barack Obama was elected, Minority Leader Mitch McConnell decided that his primary goal was to make Obama a one-term president, and that absolute paralysis was the best pathway to that goal.
In the face of this gridlock Senate traditionalists like Harry Reid struggled for five years to find a way to restore the traditional role of the filibuster -- as an occasional tool used for the most controversial bills - without overturning the Senate's traditional resistance to majoritarian democracy. Time after time Reid thought he had an agreement with McConnell to let enough matters come to a vote to restore the saucer -- and time after time McConnell reverted to paralysis.
Reid lacked unity in his own caucus, with old bulls like Iowa's Harkin who had always stood for majority rule being joined by newcomers like Tom Udall and Jeff Merkley, but with other senior senators like Carl Levin holding out for retaining the bulwark of the minority veto. But when Republicans made it clear that they would oppose any and all nominees to the DC Circuit Court of Appeals, it became clear that the filibuster had now become a tool not only for stopping new initiatives, but for undoing previous legislative acts of the Senate. The unconstitutional overreach had become so cancerous that all but three of the Democrats today agreed to join Reid and reclaim the principal that constitutionally the Senate is a majoritarian body. Dole's prediction -- that the judicial filibuster would prove a bridge too far had been fulfilled.
While today's new rule does not apply to legislation -- only appointments -- and while Supreme Court nominees were left shielded behind the filibuster, the crucial factor was that the rules change was made not on the first day of the Senate, but in the middle of a session, and by 51 votes, not 60. Going forward, a Senate majority, Republican or Democratic, can act to change the rules when it chooses -- and that will make all of the difference.
Will we see further rule changes? That is probably up to the minority at any given time. If it overreaches with its use of the filibuster on legislative matters, or if a solidly qualified Supreme Court nominee is rebuffed by the minority, the remaining segments of minority power will probably be swept away. And the minority will know that it is at risk of a rules change whenever it overreaches. If Minority Leaders return to the traditional, pre-1993 use of the filibuster, Senate tradition is likely to prevail.
But the nightmare of the last twenty years is over. There is now actually a pathway to restore public confidence and the effectiveness of the federal government. The next move is up to John Boehner, in the House. He can no longer count on a paralyzed Senate to shift the spotlight from his own fractious caucus. Once the president regains his footing, he can once again lead the government and Boehner will have nowhere to hide. Nov. 21 was twenty years in the making -- but it came, and it is a very big deal.
A veteran leader in the environmental movement, Carl Pope spent the last 18 years of his career at the Sierra Club as CEO and chairman. He's now the principal advisor at Inside Straight Strategies, looking for the underlying economics that link sustainability and economic development. Mr. Pope is co-author -- along with Paul Rauber --of Strategic Ignorance: Why the Bush Administration Is Recklessly Destroying a Century of Environmental Progress, which the New York Review of Books called "a splendidly fierce book."
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