Why Senate reform is needed

By Jonathan Bernstein

Majority Leader Harry Reid and Minority Leader Mitch McConnell engaged in a long argument on the Senate floor this morning over Republican obstruction and Democratic plans to do something about it.

In practical terms, there’s really just a game of chicken here. Republicans — remember, the minority in the Senate — want to block as many presidential nominees as possible. The rules allow that. The only real weapon Democrats have is to threaten to change Senate rules so that simple majorities can confirm those nominations, but it’s a weapon that Democrats are reluctant to use. That means that the line at which Democrats will act (because there is too much obstruction) is going to remain unclear.

And so Republicans will keep pushing right up to where they think the line is, while Democrats are going to threaten that they’ll go nuclear any minute now.

That’s what’s happening, and that’s okay, as far as it goes.

But on the merits, look, McConnell gave away the game twice during the debate. At one point he referred to a “60-vote hurdle” and at another point he talked about how few nominees are “likely to have problems getting cloture” (both my transcriptions from C-SPAN2, so I may have the wording slightly wrong).

That’s the problem, right there. McConnell, ever since January 2009, has treated filibusters as routine and universal. That’s brand new. There have been filibusters of executive branch nominees before, but only in rare cases. Almost all the time, under all previous presidents, the Senate had a simple majority hurdle, not a 60 vote hurdle, for executive branch appointments. Nominees didn’t have to get cloture; they only needed to get a simple majority.

Which is how it should be. There are reasonable justifications, agree with them or not, for super majority requirements on at least some legislation and on at least some lifetime-appointment judges. There are no reasonable justifications for needing 60 for executive branch positions. Really, I’m not aware of any good arguments for needing 60 on any exec branch nominations, let alone having it as the standard for all of those selections. For years, everyone has always believed that presidents should basically be entitled to the personnel they want, and that the confirmation process was basically an opportunity for senators to have some leverage over what happens in the departments and agencies, after which nominees would normally be confirmed. It’s a system that  worked reasonably well, and there’s no reason at all it shouldn’t be the system now, even if Democrats have to change the formal rules in order to restore how things used to work.

Again: this isn’t really going to be settled on the merits; it’s simply about how far Democrats are willing to go to accommodate what is absolutely unprecedented obstruction of executive branch nominations without invoking their right to impose a rules change.

On the merits, however, McConnell is dead wrong. He talked about whether Reid would ruin the Senate by going nuclear; the ones who are actually threatening to ruin the Senate are Republicans who insist on a 60-vote Senate, and more generally Republicans who constantly defy Senate norms in order to gain short-term advantage. That’s the real story here, and it’s a real disgrace.