After today’s Senate vote to eliminate the use of the filibuster for presidential nominees (except for the Supreme Court), Mitch McConnell vowed revenge. Evoking the tragicomic specter of unified Republican control over government, the minority leader admonished Democrats for overreaching. “I say to my friends on the other side of the aisle, you’ll regret this,” he warned. “And you may regret it a lot sooner than you think.” If this genie gets out the bottle, he seemed to threaten, forthcoming Republican presidents would be able to empower whatever conservative dream team they desired. Secretary of State Rick Santorum, United Nations Ambassador Ted Nugent, National Prank Czar Herman Cain—they’d all be just 51 votes away. Isn’t it worth it, then, to put up with a little gridlock now, if only to preserve a necessary safeguard against Republican excess in years hence?
Nope. McConnell’s threats are totally empty. Not because Republicans aren’t capable of that kind of cutthroat lawmaking—because they are, much more so than the other side.
Any future Republican majority would have dispensed with judicial filibusters immediately, no matter the protestations of their opponents, because they know better than anyone what a massive headache they can cause. Time after time over the last two decades, whether holding power or relegated to the out party, Republicans have transgressed institutional tradition and exploited procedural quirks to win battles against Democrats. Their record of ruthless effectiveness made today’s vote inevitable.
It feels like we were just having this talk, doesn’t it? Scant weeks ago, House Republicans tried for a repeat of their 2011 debt-ceiling stunt, attempting to turn what had always been a routine “Yes” vote into a new and dangerous method for Congress to extract unrequited budgetary concessions from the president. Before that, they launched the first-ever filibuster of a nominee for Defense secretary, former Republican Senator Chuck Hagel. Even earlier, they were instituting a totally novel 60-vote threshold for virtually every nominee or meaningful bill, filing about a third of the cloture motions ever in the history of the Senate—just since McConnell ascended to the leadership. Does this sound like a party that would be squeamish about rewriting the rules if the shoe was on the other foot?
And that’s just under this president. For anyone too young to remember, or else intoxicated by the sweet fragrance of Clinton nostalgia wafting in the Capitol, President Obama’s Democratic predecessor was subjected to eight years of investigation, impeachment, and repeated government shutdown when he wasn’t having his agenda stymied by the likes of Newt Gingrich and Bob Dole. For 20 years, the instinct of the Republican Party has been to use any legislative tool available, as often as possible, to counteract its losses in presidential elections.
Constitutional scholar Mark Tushnet dubs this strategy “constitutional hardball”: resorting to measures that, while constitutionally valid, have historically been kept in check by political norms. Both parties play it—Democrats persistently stalled George W. Bush’s appointees, though that group was vastly more ideological than the present one, and met with far less obstruction—but Republicans have become past masters of the art. They use it to hamper the liberal program in national politics, but it has also been employed as a tool at the local level to accomplish partisan aims. Recalling the Democratic governor of California in the absence of malfeasance, scandal, or incompetence is constitutional hardball. Redrawing congressional districts in Texas three years after the latest Census in order to pocket more Republican House members is constitutional hardball. Changing the way blue states award their Electoral College votes to advantage the Republican presidential candidate is constitutional hardball. No matter the case, the party has been willing to shimmy into the space between what is legally allowed and what mom would be proud of.
Most importantly, they’ve made this approach their ethos in governing as well as opposition. If they want to pass a law instead of blocking one, Republicans don’t let something as silly as congressional politesse get in the way. During the legendary 2003 vote on Bush’s Medicare Part D expansion, then–House Majority Leader Tom Delay stopped time for three hours and offered inducements to get wavering GOP backbenchers to vote with the rest of the pack. Bush’s tax cuts, the signature conservative achievement of this century, had to be fast-tracked through budget reconciliation in contravention of the Byrd Rule, a Senate ordinance barring the use of the process for any bill that expands the deficit. After the Senate parliamentarian balked at their abuses, they canned him. And of course, when Republicans tired of Democrats impeding the appointment of their judicial nominees, they came up with a little something called the nuclear option to bully them back into line.
Someday the Republicans will once again control the White House, Senate, and House of Representatives, and on that day, Democrats will surely regret that they can’t filibuster the slate of loons, chiselers, and fanatics that will once again occupy the highest offices in the land. But that will be because Republicans long ago embraced a policy of bending rules to consolidate power, not because Democrats finally learned how to defend themselves against it.