08/30/2012 03:24 pm ET Updated Oct 30, 2012

Shirts Versus Skins: Politics and the Cynical Use of Rule 22

This is one of my periodic "shirts versus skins" columns. Just as shirts versus skins is a common form of denoting team affiliations in playground basketball in the absence of uniforms; it also describes much of our political discourse in that our support is based more on who said it than what was said.

On January 20, 2009, as President Barack Obama went from one inauguration party to another, key lawmakers from the Republican Party held a secret meeting of their own.

According to Robert Draper's book, Do Not Ask What Good We Do: Inside the U.S. House of Representatives, the GOP guest list that night included future House Majority Leader Eric Cantor and future Vice Presidential Nominee Paul Ryan. Senators Jim DeMint (R-S.C.), Jon Kyl (R-Ariz.), and Bob Corker (R-Tenn.) were in attendance, as was former Speaker Newt Gingrich and Republican strategist Frank Luntz.

After a four-hour meeting, there was uniformity in their opposition to the new president. Gingrich reportedly stated: "Show united and unyielding opposition to the president's economic policies, win the spear point of the House in 2010. Jab Obama relentlessly in 2011. Win the White House and Senate in 2012 ... You will remember this as the day the seeds of 2012 was sewn."

The day the president was sworn into office there was a corresponding Machiavellian plan to make him a one-term president.

One of the most effective methods to derail the president's agenda has been Senate Rule 22. Adopted in 1917, amended in 1975, Rule 22 requires three-fifths (60) of Senate membership to close debate. Unlike South Carolina Senator Strom Thurmond, who held the record for 27 hours in opposition to civil rights legislation, the amendments to Rule 22 allow for an "invisible" filibuster in that the minority need only state their intention to filibuster.

Rule 22, as it has been applied recently, places the majority as subservient to the will of the minority. Consider a sampling of bills that had majority support but could not be debated:

• Paycheck Fairness Act, legislation that would ensure men and women who do equal work receives equal pay had 52 votes.

• Disclosure Act, which banned U.S. corporations controlled by foreign governments from influencing election outcomes through the use of campaign contributions had 59 votes

• Bring Jobs Home Act, which would have given tax incentives to companies that bring jobs back to the United States had 56 votes.

Moreover, Rule 22 gives the minority the power to hold up existing laws, block judicial appointments, and allows all senators to hold the entire body hostage to extract something that could not be obtained by majority vote.

Use of Rule 22 in this manner becomes a self-fulfilling prophecy. Senators are allowed to hide in the shadows, declaring their intent to filibuster, derail bills that have majority support, and then go on television bemoaning the president's inability to lead.

By implementing a de facto supermajority for passing legislation, Congress has become what Alexander Hamilton warned in Federalist 22.

Hamilton wrote:

"The real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice, or articles of an insignificant, turbulent or corrupt junta to the regular deliberations and decisions of a respectable majority."

In a "shirts versus skins" motif, I suspect there is nothing wrong with the way Rule 22 has been used, especially if one is in the minority. It is a world where elections don't have consequences, and the price for being in the majority is gridlock.

Politics are cyclical and the minority will one day become the majority. It is only when Rule 22 is used against one's side can they provide a cogent response for their support for or opposition to its cynical application.

But in "shirts versus skins" politics, there is little appreciation for institutional memory.