The Filibuster, Roughing the Passer, and the Dangers of Overreaching

-- Posted by Neil H. Buchanan

This past Thursday was a bit of an odd day for me.  In writing my Verdict column, as I was trying to come up with a list of things that Republicans might offer to Democrats as part of "real bargaining" (as opposed to hostage-taking), I noted that "Democrats want Republicans to stop filibustering the President's judicial nominees."  Later in the day, when I wrote my Dorf on Law post, I described how the lack of a neutral baseline defining the rules of "true football" made recent complaints about rules changes in the NFL ring hollow.

Several commenters on my DoL post noted immediately that my analysis there could easily apply to Republicans' complaints about the changes that Democrats had passed in the filibuster rules that day.  One commenter said that he assumed that I had intended the comparison.  I have to admit that I was not doing any such thing.  I had, in fact, not even been checking my usual news sites for a couple of days.  Even though I knew that the filibuster was suddenly a hot topic again, I did not know about the vote, and I certainly had not read any of the Republicans' specious complaints.

Now that I have caught up on the news, however, I see that the comparison is even more apt than I could ever have planned.  My point in Thursday's post was that you can just as easily have football with rules that "favor the defense" as you can with offense-favoring rules, and the only thing that you can say is that the two sets of rules are different.  You can assess whether you like the way the game is played under the two sets of rules, applying some external set of criteria, but you cannot say that one game's rules fundamentally differ from some mythical "rules of nature" that supposedly define football.

The over-heated, silly comments that we have been hearing from current and retired NFL defensive players are nothing compared to the Republicans' complaints about Thursday's changes.  John McCain called them a "travesty," which amounts to little more than one of his usual temper tantrums.  ("I liked the old rules.  The new rules are a travesty!")  He can complain about losing his power all he likes, but if by travesty he means "travesty of justice," he is simply wrong, because there is no baseline definition of justice that requires the Senate to have a 60-vote requirement (or any other number) to confirm executive and judicial nominees.

The essence of the silliness, however, was captured by faux-moderate Republican Senator Lamar Alexander, whose name appeared on the byline of an op-ed in the Washington Post on Friday.  Alexander was at least correct to point out that Democrats have similarly raved about the sanctity of the filibuster in their time, quoting Sen. Carl Levin (who was quoting former Republican Sen. Arthur Vandenberg) as follows: "If a majority of the Senate can change its rules at any time, there are no rules."

Other than the "gotcha" aspect of this line having once been uttered by a Democrat (although Levin himself voted against the changes on Thursday), where is the content here?  Beyond the complete lack of a filibuster in the Constitution or any other authoritative source of law, what does it mean to say that there are no rules because the Senate can change the rules at any time?  The process of making rules is apparently still set by majority rule.  Otherwise, the 52-48 vote would not have changed anything.  But that rule is just as arbitrary (albeit appealing to core notions of democracy) than a rule that requires that, say, a procedure cannot be changed until the change has been voted upon three times, with progressively larger numbers of Senators voting for it on each iteration.  That fanciful rule, like any other, could be gamed, just as the most recent version of the filibuster procedure had been gamed.

So, yes, the similarities between the complaints about recent NFL rule changes and the Republican outcry about the filibuster changes made the timing of my Thursday post inadvertently apt.  Both sets of complaints are based on the fundamental error of claiming that one's preferred set of rules is "right" in some deep sense of an "untilted playing field."  This is obviously not to say that any set of rules is as good as any other, but that the goodness or badness of the rules cannot be assessed by some appeal to a Platonic ideal of rules.

It is one thing to listen to people like Ray Lewis and Mike Golic complain about the loss of the good ol' days when they could more easily injure their opponents.  Seeing Republican Senators talk about the august nature of the Senate, while insulting the intelligence of anyone listening to their whining, is quite another.  Beyond the Republicans' completely situational complaints, however, there is an additional interesting lesson to be learned from last week's events.

As I noted above, my Verdict column offhandedly included a reference to the raft of Republican filibusters of Obama's judicial nominees.  (I could also have mentioned their filibusters of his executive-branch nominees, and their filibusters of legislation, the latter of which are still possible under the new rules.)  I offered this example in the same generic category as tax increases on the rich, or labor law reforms.  The idea was that the Republicans could use the filibuster as one of their bargaining chips.  For example, they could say: "I'll agree not to filibuster 10 of your judicial nominations, and I'll also give you a $2-per-hour increase in the minimum wage, a tripling of the budget for Food Stamps, and a reduction in the eligibility age for Medicare to 25, if you'll agree to repeal the ACA, and ... ."

In the context of that column, I was merely expanding on a point that I had made a few weeks ago here on Dorf on Law, which is that negotiating requires giving as well as getting.  This is in contrast to the threat not to increase the debt ceiling, and arguably also the threat to shut down the entire government, because the extreme damage from those actions is so different from the consequences of agreeing to the various tradeoffs involved in what used to count as normal legislating.  ("You want the capital gains tax rate to go from 15% to 25%, and I want it to go down to 12%.  I think things will be worse than necessary if we compromise at 19%, but I don't have the votes to push it lower.  Oh well.")

Now consider what the Republicans have inadvertently revealed.  The basic objection to Republican hostage-taking regarding the debt ceiling is that there is no legitimate policy interest in refusing to increase the debt ceiling (and thus preventing the country from honoring its commitments), because the normal legislative process will determine the level of debt in the future.  This, in turn, means that if Republicans refuse to increase the debt ceiling, and thus risk destroying the financial system and the economy, the President must choose not to negotiate with hostage-takers, because there are legitimate means by which one's debt goals could be reached.

It is true, of course, that people can and do negotiate with hostage-takers all the time.  Republicans thus try to meta-frame the argument by saying that the President could negotiate over the debt ceiling (again), so he is the one who would be responsible for any harm that might come to the hostages.  That, however, is no different from a kidnapper shooting his victim and then saying, "See what you made me do?!"

When President Obama agreed to negotiate over the debt ceiling in 2011, he did not have to do so, and doing so was quickly seen to have been a grave mistake.  Yet he had acted as if negotiating over the debt ceiling was just another normal part of the log-rolling process by which legislation is created.

For the past five years, Senate Democrats had been going along with the idea that it was normal and acceptable to have to garner 60 votes to do anything.  Republicans not only threatened to use the filibuster, but they used it repeatedly.  Finally, Democrats said, "Hey, we don't have to do this anymore.  We've been begging them to do things differently, and we probably would have agreed not to do this if they had allowed even one of Obama's DC Circuit nominees to go through.  Time to stop negotiating, because there is nothing stopping us from getting what we want without having to give them anything."

I suspect that the same thing will happen, if the Republicans ultimately carry through on their threats not to increase the debt ceiling.  The President will find a way to invoke Buchanan-Dorf, the Republicans will scream about lawlessness, and so on.  What we saw last week was a smaller version of that category of political standoffs where one side suddenly realizes that they have been needlessly constraining themselves.  While it is always admirable to see partisans refuse to exercise the full extent of their powers (for reasons of comity, public relations, and so on), last week's events are a telling example of what happens when one side overplays its hand.
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