First mover.

Last week, Senate Democrats exercised the “nuclear option”, i.e., they eased the rules of cloture by requiring 51 (instead of 60) votes to stop filibusters in certain confirmation hearings, i.e., they made it easier to rubber-stamp the President’s nominations. The Democrats say they did it because the Republicans were being obstructionist by filibustering the nominations of so many of President Obama’s nominations– which they were. The Republicans say the Democrats have violated decades if not centuries of precedent and tradition– which they did. But it wasn’t cheating. Article I, Section 5, Clause 2 of the Constitution permits the Senate to make its own rules, so changing the filibuster rules (especially mid-term) may be sneaky and may be cheap, but it’s legal, so that’s that.

I have long thought that the two big parties have been foolish not to unilaterally abolish the filibuster. Here’s my reasoning, in short:

1. No part of the Constitution requires a filibuster, so there’s nothing legally stopping its abandonment.

2. If the majority Party A gets rid of the filibuster, Party B is surely not going to reinstate it when (if?) they re-take control of the Senate, so in the long run Party A won’t look that bad.

3. If Party A gets rid of the filibuster for confirmation hearings, Party A can confirm any nominations they want. So why not get a head start on Party B? Get your nominees through now, and your judges will be on the federal courts for the next 20 to 30 years. Let Party B play catch-up.

4. If Party A gets rid of the filibuster for legislation, Party A can pass any laws they want. Get your laws in place now, and start adding to the legal infrastructure that Party B will have to dismantle if they ever take the Senate back. If Party A’s laws prove popular or effective, then Party B will be in the position of having to get rid of good laws.

5. Party B will be back in power one day– maybe after the next election, maybe later– but Party A has an entrenched policy and/or personnel advantage because they moved first.

My thinking was based on the assumption that Party A had just taken over the Senate, had relatively high approval ratings and political capital, and that they could afford to take a hit in the polls. The reality is a little bit different: I think the Democrats (Party A) are making this move out of desperation, as a reaction to the ObamaCare albatross. They’re doing it in order to entrench as many federal judges as possible before the 2014 elections because they’re increasingly afraid they’ll lose control of the Senate. Plus, they want as many pro-ObamaCare judges as possible on as many federal courts as possible for as long as possible, because Lord knows those lawsuits are a-coming.

But here’s the trouble: the Democrats skipped #4. They got rid of the 60-vote rule for confirmation hearing, not for legislation. And by doing so, they made it a lot easier to get rid of the 60-vote rule in case of legislation. Now, whoever controls the Senate can say, “Hey, now that we only need 51 votes to stop the other party from obstructing crucial nominations, why not have a 51-vote rule to stop the other party from obstructing crucial legislation?”

Today, the Democrats would gain no additional advantage by making the additional change, because the Republicans control the House and aren’t going to pass anything the Democrats like anyways. The Dems should have done it four years ago, when they controlled both houses of Congress and Obama was still extremely popular. Instead, they’ve blown the first-mover advantage and they’ve opened the door for the Republicans, next time they control both Houses (which could be in January of 2015), to say, “Fair’s fair; 51 votes stops a filibuster in all circumstances.” And then 51 Republican Senators will be able to pass whatever bills they’d like.

The 60-vote cloture (Senate-ese for “stop a filibuster, thereby forcing a vote in one hour”) rule was one of those elements of the Senate that was supposed to make it the calmer, more reasonable of the two Houses. It would make the Senate into the saucer that cooled the tea, if you’re familiar with that old analogy, because in theory, you’d need to build a broad 60-vote consensus to pass legislation. And maybe it has served that purpose, or maybe it did serve that purpose, but in this case– the case of the Affordable Care Act– it seems to have institutionalized a program that came up in a radical, fleeting moment. A party briefly had 60 votes, it quickly passed a badly designed law of dubious constitutionality, and given the current filibuster rules, we’re conceivably stuck with that law until there’s a 20-vote swing in the other direction. Actually, it passed the Senate 60 to 39, so it’d have to be a 21-vote swing.

The filibuster was supposed to make it difficult to pass bad laws. It made it just as difficult, if not more so, to get rid of bad laws.

I will say that the sturm und drang over the rule change is overwrought. The Senate did something perfectly constitutional for once; hopefully it becomes a habit. And if the 60-vote rule is really that sacrosanct, then it should be no problem to have two-thirds of both houses of Congress introduce and three-quarters of the state legislatures pass an amendment requiring the Senate to keep the 60-vote rule. I won’t hold my breath.

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