The Senate is about to go nuclear again. Last week, Senate Majority Leader Mitch McConnell (R-KY) reportedly confirmed that he now has the votes to once again override Senate rules in an effort to speed up the confirmation process for judicial nominees. The change involves lowering the maximum time for debate before a final vote on most judicial and executive branch nominations from the current thirty hours to two hours — one hour each for the majority party and the minority party.
Justifying the rule change as a necessary counter against the “mindless obstruction” of Senate Democrats, Sen. McConnell risks further escalation in the procedural battles of the Senate to the detriment of the institution. Worse still, it only makes future rule changes that much more likely, changes that may not be to the benefit of Senate Republicans that are currently pushing reform.
The ever-increasing centralization of power in party leaders, disdain for deliberation, and willingness to jettison rules on a whim because they are inconvenient in the moment are all contributing factors to the Senate’s current state of dysfunction. I have written here before that “senators now inhabit an environment with a misaligned incentive structure where electoral concerns have an outsized role in decision making,” and this latest rule change by nuclear option once again chooses political convenience over responsible governance.
There is a noticeable pattern to the discussion about rule changes. Every time one party decides abiding by a rule is not important, it gives the other side little incentive to think it is important when they must decide whether to follow it or continue escalating.
Such a sentiment was on display during the debate over President Trump’s decision to declare a national emergency over border security. Instead of raising questions about the constitutionality of his actions, Senator Chris Murphy (D-CT) declared that if “Trump gets away [with] this border emergency declaration, then a [Democratic] President can declare a gun violence emergency and institute universal background checks and an assault weapons ban by executive action.” Sen. Murphy’s argument was simple: if your side can do it, then so will we.
The same whataboutism spiral will happen with Senate rules that are designed to protect minority interests.
Writing for The Bulwark, R Street Institute Senior Fellow James Wallner captures the inherent problem of endlessly tinkering with rules via the nuclear option by pointing out that “by its very nature, its use undermines the Senate’s rules and, therefore, weakens the legislative filibuster.”
With ample evidence of short-term driven motivations dominating both sides of the political spectrum, it is easy to see how a future Democratic or Republican Senate will take up former Senate Majority Leader Harry Reid’s (D-NV) original nuclear option defense to “change the Senate before this institution becomes obsolete” as means to gut the legislative filibuster. Instead of doing the hard work to achieve a consensus position, rules and precedents that otherwise give the minority party a voice are more easily brushed aside as a political inconvenience to the majority.
The only thing that has prevented this from happening thus far is the shared belief in the importance of the Senate as an institution to protect minority rights. As parties take turns steamrolling the minority to unilaterally change rules, the meaning of the institution in our constitutional system is continually denigrated.
During the contentious impeachment trial of President Andrew Johnson, public opinion was strongly in favor of removing the president due to his more conciliatory approach to the post-Civil War South. When the House voted overwhelmingly to impeach President Johnson, senators were next to feel the intense public pressure to vote to convict him.
In the end, seven Republican senators voted against removal, stopping a new precedent that unpopularity can be used as a means to remove a president. Their principled positions cost them their reelections, but it bolstered the Senate as the place for dispassionate deliberation.
One of those senators, James Grimes of Iowa, recalled the gravity of his refusal to cave to the political pressure; “I shall ever thank God that in that troubled hour of trial, when many privately confessed that they had sacrificed their judgment and their conscience at the behests of party newspapers and party hate, I had the courage to be true to my oath and my Conscience.” The fact that this sounds so incredible should serve as an unfortunate commentary on what we expect of senators in our time.
It would do wonders for the Senate to have the same courage to put a halt to constant calls to change their institution’s rules, even if it is politically inconvenient to do so in the moment. Instead of being swept away by the feeling that such radical changes are inevitable or justified because of the other side’s actions, senators would do well to look back to the history of their institution.
By looking back at the words of Sen. Grimes and looking ahead to see how the endless cascade of rule changes will weaken their institution, senators must consider what it will take to return to a functioning and deliberative Senate. The price for failing to do so will be a more cynical system that continues down the road of casting aside inconvenient rules in exchange for quick political victories.
Senators are now at a crossroads. Unless politicians in both parties are able to see beyond the short-term gains of sudden rule changes, the countdown timer until the legislative filibuster goes the way of all other inconvenient Senate rules is ticking.