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Arcane rules

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Fifty-two years ago, President John F. Kennedy and House Speaker Sam Rayburn overcame a small minority of obstructionists in Congress and changed the history of American politics.

In 1961, Democrats held 263 seats in the House. With only 174 Republicans with whom to contend, the president and Rayburn should have been able to push through whatever they pleased. But six of the 12-member House Rules Committee had effective veto power on all legislation. The committee of eight Democrats and four Republicans controlled the schedule of the U.S. House. When the committee's two conservative Southern Democrats, Howard Smith of Virginia and William Colmer of Mississippi, banded together with the Republican members — as they did often, especially in the face of civil rights legislation — they could block proposals from reaching the House floor.

Kennedy and Rayburn's solution was to add three new members to the committee, including two younger, more liberal Democrats who would assure the president's domestic agenda could reach the floor. The ensuing fight has been described as the fiercest of the era. Only by expending much political capital did Kennedy and Rayburn prevail. Their victory lost the South to Democrats for a generation and, several years later, helped usher in Lyndon Johnson's Great Society.

Last week, the Senate made a similarly arcane change to procedure that could have just as sweeping of an effect on American politics — with progressivism and pain served in similar manner. Led by Majority Leader Harry Reid and with the blessing of President Obama, most Senate Democrats (though not Mark Pryor) voted to deny the minority party the opportunity to block executive and judicial nominations (save the Supreme Court) with a filibuster, which requires a 60-vote supermajority to overcome. The next time the minority uses the filibuster on a significant piece of legislation or a Supreme Court nominee popular within the majority, bet on the procedure dying all together.

In reaction to the news, state Sen. Jason Rapert, the standard bearer for right-wing-nuttery in Arkansas, tweeted, "America, this is tyranny." In fact, the move was a highly democratic corrective. The filibuster isn't in the constitution. It wasn't used until the mid-19th century and remained incredibly rare until the 1970s. Democrats and Republicans were each on the other side of near filibuster showdowns in 2003 and 2005 and many of them are on record supporting what they now oppose (John Boozman in 2005: "The American people are tired of obstructionism").

Senate Minority Leader Mitch McConnell forced the hand of Democrats. Since he became Republican leader, filibusters have gone from a way for the minority to issue a protest in extreme situations to standard procedure. Almost 30 percent of all the cloture motions — cloture is the procedure to break a filibuster — filed in the last 100 years have come under McConnell's watch.

The rule change will obviously come back and bite Democrats eventually, but in the meantime, the Obama administration may actually be able to get some things done. The EPA is in the process of issuing new rules to limit carbon emissions. Much of the administration's financial reform package, Dodd-Frank, hasn't yet been enacted. Both are sure to draw legal challenges and, like most all court cases involving the federal government, they're likely to go the D.C. Circuit Court of Appeals. Now that the filibuster has been curtailed, the president is expected to get three long-delayed nominees to the D.C. circuit confirmed, which will put the court in control of judges nominated by Democratic presidents.

Party polarization broke the practical uses of the filibuster. Without a change, Democrats wouldn't have gotten anything out of the Senate. Moreover, Republicans likely would have ended the filibuster whenever they eventually took back the Senate majority and won the presidency. Why not act now?

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