In the months ahead—as in the early 1970s—Congress is going to need every tool it can muster to protect Americans from presidential abuse of power.
On February 27, 1973, just as the Watergate scandal was beginning to explode, the U.S. Senate Subcommittee on Intergovernmental Relations, chaired by Democratic Senator Edmund S. Muskie of Maine, held a rather nondescript hearing to examine President Richard Nixon’s “New Federalism” agenda.
In the 1960s, after decades of opposition by several states to civil rights and efforts to help the disadvantaged, many of President Lyndon Johnson’s Great Society programs bypassed state governments with direct federal aid to local communities and school districts. President Nixon’s New Federalism was an effort both to reverse that power shift by sending funds back through the states, and to cut funding for the programs.
At the hearing, just before the early press deadline (in those days before cable news and the internet, making the newspaper deadline was crucial), Virginia Governor Linwood Holton launched into a tirade about how impatient President Nixon was with Congress’ handling of his proposals to dismantle the War on Poverty. Holton, the chairman of Republican Governors Association, had been briefed by the White House, which wanted to shape the news story out of the hearing.
Muskie answered Holton for the record, and then turned to me (as subcommittee staff director sitting next to him) and said:
“Someday, we will find that the inefficiencies of the Senate will have saved our liberties.”
Muskie believed in protecting congressional prerogatives, including those that resulted in “the inefficiencies of the Senate,” as a safeguard against excessive presidential power or the power of the majority party to run roughshod over the minority. Muskie learned the importance the minority party rights as governor of Maine, he didn’t have enough Democrats in his legislature to sustain his veto.
The lesson I learned from him that day is that major systemic reforms should be undertaken only after considering the long-term consequences, not to achieve a desired outcome on a particular issue or short term political gain. Muskie was an ardent reformer, but he was always mindful of the consequences when political circumstances changed and the shoe was on the other foot, when today’s minority party became tomorrow’s majority party.
I thought about that as I watched the Senate Republican majority try to ramrod the confirmations of President-elect Trump’s cabinet nominations through the Senate.
I’m sure many of the Senate Democrats sitting through an overloaded schedule of confirmation hearings are wishing they had exercised a little more forethought back in 2013, when, as the majority party, they voted to eliminate the ability of the minority party to use the filibuster to block confirmation votes on most presidential appointments, including cabinet secretaries.
This week Democrats, and, more importantly, the country, are paying a big price for that.
The ability of the Senate minority party – and even individual Senators – to delay and obstruct progress can be extraordinarily frustrating. None more frustrating in recent years than the filibuster rule that required a 60-vote supermajority to get an up or down vote on confirmations of presidential appointments.
That frustration boiled over on November 21, 2013 during a fight over the confirmation of three of President Obama’s nominees to the U.S. Court of Appeals for the District of Columbia, whose confirmations the Republicans had irresponsibly blocked.
Senate Democrats, tired of Republican obstructionist tactics, made it virtually impossible for the minority party to use the filibuster to block a floor vote on presidential appointments for the federal bench and executive offices, including cabinet secretaries. Using a rare parliamentary procedure, by a simple majority vote, they changed the Senate rules to eliminate the filibuster on most nominations. Normal procedures and precedent required two-thirds vote to make such a major change in Senate rules.
They were clearly proud of what they did. According to The Washington Post story the day of the rules vote: “The change was so significant that [Senate Majority Leader Harry] Reid and his leadership team held a victory party with liberal activists afterward in a room just off the Senate Floor.”
This week, as President elect Trump and Senate Republicans try to ram several cabinet nominees through the confirmation process – some with potential conflicts who have not completed their ethics review process – Democrats will be deprived of a critical tool to slow down the railroad. And now, in the minority, they don’t have the votes to change the rules back.
I’m sure that when Senator Reid and the liberal interest groups celebrated the end of the filibuster, they didn’t anticipate what Ed Muskie did more than 40 years ago: that they would face a week like this one – when they’d need the filibuster and just about any other inefficiency the Senate can muster to save our liberties.
Al From is founder of the Democratic Leadership Council and author of The New Democrats and the Return to Power.