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Bipartisan hypocrisy revisited

Bipartisan hypocrisy revisited
By Eric Black

I ask unanimous consent to revise and extend my remarks of last week alleging that almost all members of both parties are hypocrites when it comes to using the filibuster when they are in the minority and denouncing it when it they are in the majority.

Several commentators, in the thread and elsewhere, took me to task for implying that the situation in 2005 (when Dems filibustered several Bushie judicial appointments and denounced Repub tactics to overcome the filibuster) and 2010 (when Repubs are filibustering the health care bill and denouncing the coming effort by Dems to overcome the filibuster by the tactic known — apparently without irony –as “reconciliation,”) are morally equivalent, for hypocrisy-finding purposes.

Those from the left, who sympathize with the coming Dem use of reconciliation (which may enable them to pass amendments to the health care bill with 51 votes, instead of the 60 they would need to break a filibuster) point out that the 2010 reconciliation will not be a novel tactic and would not be a change from recent practice. This is quite true. As I mentioned in my piece, reconciliation has been used by both parties, but more often by Repubs, to pass bills, including several recent major bills dealing with health care, when the majority lacked the votes to break a filibuster.

By contrast, this argument goes, what the Repubs were threatening to do in 2005 — which came to be known as the “nuclear option” — would have been a change from normal practice. So the two cases are not perfectly equivalent. In the comment thread, Matt Brinkman wrote:

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“I do not understand why you feel Republican attempts to change Senate rules mid-session in 2005 is in any way comparable to Democrats today contemplating using rules that were established in 1974 to move health care through the Senate. I am also at a loss as to why the Democrats’ choice to support existing Senate rules in both 2005 and 2010 would mark them as hypocrites.”

Brinkman’s facts are correct. Several Dem defenders have been at pains to point out that the term “nuclear option” should not be used to describe what the Dems will soon do and that Republican senators and Fox News are intentionally using the “nuclear” term to confuse the public and sweep aside the difference between 2005 and 2010 and that vigilant truth-seekers should avoid using “nuclear” to describe the Dem plan to use reconciliation to pass the Senate bill. That’s fine with me. Nuclear option is not a term with concrete meaning, but it is generally a reference to the 2005 instance.

Sure 2010 it’s different. No to cases are exactly alike. And it is a natural, if somewhat lawerly instinct to emphasize the distinctions to avoid having an inconvenient precedent applied. During the Thursday health care summit, Repub Sen. Lamar Alexander tried to make the case (and this has become a standard Repub talking point over recent days) that use of reconciliation on the health care bill would be “unprecedented” because of the sheer size and impact of the bill.

Sen. Alexander (in the Republican opening remarks at the health care summit): “You can say that this process [reconciliation] has been used before, and that would be right. But it’s never been used for anything like this. It’s not appropriate to use to write the rules for 17 percent of the economy.”

Alexander implies (but, to his credit, doesn’t actually state) that there’s some kind of upper limit on the size of bills that can be passed through reconciliation and, apparently, 17 percent of GDP is too darn big. This is how the search for unprecedentedness to feed outrage works. (The Bush tax cuts, by the way, which were pretty darn big, passed through reconciliation.)

Repub defenders also distinguish the 2005 case as different, and less outrageous, than the 2010 case, by imagining into existence an exception to the normal filibuster rule for judicial nominations. (The 2005 case was all about Dem filibusters against seven nominees for judicial appointments.) Commenter Peter Swanson alluded to this in the thread on last week’s piece. The claim is that because the requirement for the Senate to “advise and consent” in the presidential appointment of federal judges, it is implicit that a vote to confirm a federal judge should not be subject to filibuster.

Many Repubs who took that position made the mostly true but slightly false claim that filibusters against judicial appointments were — yes — unprecedented. The more honest among them would acknowledge, perhaps in an aside, that Republicans successfully filibustered LBJ’s effort to elevate Justice Abe Fortas to chief justice. It was the end of the LBJ’s term and the filibusterers successfully ran out the clock. Dems have never filibustered a Supreme Court nomination. If they had, the one nomination that would have been defeated would have been defeated was Clarence Thomas in 1`991, since he was only recent Supreme court nominee to be confirmed with fewer than a filibuster-proof 60 votes. (It was 52-48).

Commenter Greg Kapphahn turned the judicial-appointments-are-special argument on on its head, arguing that judicial appointments are an especially appropriate topic for filibusters.  Commented Kapphahn:

“IMO there is a HUGE difference between passing judicial nominees by wiping out the minority party’s ability to filibuster and passing legislation through reconciliation. Whereas legislation can be undone by the next congress, judicial nominees are lifetime appointments. In 2005, George W. Bush was attempting to stack the federal courts with VERY conservative (anti-people, anti-human rights, pro big-money, pro big-business) judges.”

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It will be interesting to see if Repubs continue their declared principle of not filibustering judicial appointments for the rest of the Obama administration and especially when the next Supreme Court opening occurs, probably later this year. And it will interesting to see if Dems, who took the Kapphahn position in 2005, will take it in 2010 if Repubs decide to filibuster a judicial appointment.

To me, the various back and forths above tend to support the argument of my Thursday post. Partisans tend to claim, and probably sincerely believe, that they are standing up for important procedural principles, but in the majority of cases, the important principle happens to favor their own side in the underlying substantive argument. And later, when the majority becomes the minority and vice versa, many of them find themselves defending the procedural arguments they attacked before (and vice versa).

“Is there something wrong with majority rules? I don’t think so.”

Take the recent case of Repub Sen. Judd Gregg of New Hampshire. Last year, Gregg suggested that if the Dems use reconciliation to sneak past a Repub filibuster it would be the equivalent of “running over the minority, putting them in cement and throwing them in the Chicago River.”

But, as the video below shows (hat tip to Talking Points Memo), Gregg took a different position in 2005, when Repubs had the majority and were trying to use reconciliation to open the Arctic National Wildlife Refuge to oil drilling. 

(In case you couldn’t get the video to work or didn’t have time to watch it, in 2005 Gregg argued that there is nothing unethical or improper about using reconciliation to guarantee that if you have 51 votes in the Senate you can pass your bill.)

Me, I agree with Gregg, circa 2005. And I agree with Harry Reid, circa 2010, who says the Repubs are now whining about the Dems possible use of a tactic (reconciliation) that the Repubs have used when they found it convenient and possible to do so.

(But please note: The Repubs did not succeed in changing the rules for judicial nominations. That was stopped by a bipartisan compromise. And Gregg did not succeed in getting the drilling started in ANWR, via reconciliation.)

(And another aside, before I forget. Yes, reconciliation has been used many times to get around the filibuster. But if you review the history of the rule, it was intended for much narrower purposes than those for which it is now used and for which the Dems now propose to use it.)

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Certainly the Dems who now favor reconciliation for health care have assumed Gregg’s 2005 position. But was their 2005 position fundamentally different from the current “cement shoes in the river” Repub position? The Dem defenders suggest the cases were fundamentally different because then, the principle was about playing by the pre-existing rules.

To me, the hypocrisy charge still works in both directions. To me at least, the key principle is not whether the rules can be changed (and, of course, they can be changed) but whether a minority of senators should be allowed to prevent a vote on something that is supported by a majority. I say no. There are plenty of restraints on the tyranny of the majority built into the Constitution. The filibuster is not one of them. Nor is the filibuster about guaranteeing full debate.

Go back and review those video clips of Dem Sens Obama, Biden, Clinton, Reid et al in 2005. Yes, some of them seemed to object to the idea that the rules were not being respected, but the main burden of their arguments were the absurd ahistorical and unprincipled canards that respect for the filibuster was the framers’ plan, is vital to democracy and is  necessary to ensure full debate.

Me, I agree with the current Dem argument that there is nothing unprecedented, unethical or undemocratic about about using reconciliation for the health care bill now.

But if, as Repubs now boldly predict, they campaign in the fall for the repeal of the bill and regain the majority in the Senate, will they really try to repeal the bill? And if they do win a small Senate majority (51 is about as high as you can imagine), will they then argue that a majority ought to be able to repeal the bill without needing a 60-vote supermajority? And will the Dems object if they try to pass the repeal with 51?