Grant Bosse: Shaheen is willing to ignore rules she doesn’t like
“They define a republic to be a government of laws, and not of men.” – John Adams, Massachusetts Gazette and the Boston Post-Boy and Advertiser, March 6, 1775.
When John Adams coined the phrase “a government of laws, and not of men,” he wasn’t writing about the United States, which wouldn’t declare its independence for another year, or adopt the present Constitution for 13 years after that. He was describing the monarchy of Great Britain, whose Parliament had gradually replaced the arbitrary power of kings and queens with the rule of law. I wonder how he would describe our republic, in which elected leaders willfully ignore laws they find inconvenient.
New Hampshire Sen. Jeanne Shaheen certainly has no trouble ignoring the long-standing rules of the U.S. Senate, or at least threatening to do so for political gain. Despite a bipartisan agreement to advance several contentious nominations, Shaheen won’t rule out using the “nuclear option” if Republicans fail to rubber stamp any of President Obama’s nominations in the future.
Let’s step back a bit and reflect on how we got to the brink of nuclear metaphor in the world’s most deliberative body.
The U.S. Senate was designed to be a cautious, deliberate body as opposed to the rabble-rousing populists in the House of Representatives. Senators weren’t even directly elected at first, chosen by state legislatures in order to distance them from the passions of the mob.
Thomas Jefferson, quite the populist, was skeptical of the need for a bicameral legislature, and questioned George Washington over a cup of tea on the use of the
“Why did you pour the tea into your saucer?”
“To cool it,” said Jefferson.
“Just so,” said Washington, “that is why we created the Senate. The Senate is the saucer into which we pour legislation to cool.”
That conversation wasn’t documented until 1850, and probably never happened, but I’d really like to believe it did.
Alexander Hamilton wrote in Federalist 76 that the Senate appointment power would be “an excellent check upon the spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
We’ve built on the founders’ work, amending the Constitution to provide for the direct election of senators, but we’ve maintained the ability of each chamber to set its own rules. Because senators serve six-year terms, only a third turn over each session, though many incumbents are re-elected. Unlike the House, which reforms from scratch every two years, the Senate is a continuing institution, whose rules carry over until amended or replaced.
Those rules allow any senator to speak on any bill indefinitely, unless three-fifths of all Senators agree to limit debate. The act of extending debate to prevent a vote is known as a filibuster and the motion to limit debate is called cloture.
Few true filibusters
According to Senate Majority Leader Harry Reid, the Senate has endured more filibusters in recent years than any time in history. He’s lying. Aside from Sen. Rand Paul’s marathon speech on drones earlier this year, the Senate has barely seen any filibusters.
What we have seen is a record number of cloture motions, as Reid tries to limit debate, often before it even begins. Reid’s failure to manage the Senate floor through the use of time agreements on controversial bills has ground the chamber to a halt.
Republicans had also prevented votes on several controversial Obama appointments, prompting Reid to threaten the use of the “nuclear option.” He and the Democrats would decide that Senate rules didn’t apply to them, and they could close debate with a simple majority.
This was a bad idea when Sen. Trent Lott threatened it in order to overcome Democratic objections to Bush judicial nominees, it’s a bad idea now, and it would be a bad idea if Republicans retake the Senate in 2014.
This week, the Senate reached an agreement to move ahead with several nominations if Obama withdrew two of them. Shaheen is happy with the deal, but won’t rule out scuttling Senate rules again.
“I am pleased that a bipartisan compromise was reached to end the gridlock over President Obama’s executive branch nominees. I’ve always believed that all presidents, regardless of party, should be allowed to fill their own cabinets. I hope today’s agreement helps lay the foundation for greater bipartisan cooperation on the many important issues facing the country,” Shaheen said in a statement released by her office on Tuesday.
The Senate’s consent to presidential appointments is a crucial check on executive power.
The ability to filibuster protects the Senate’s place as a deliberative body that respects the rights of the political minority, lest it become as susceptible to the whims of the majority as the House.
Shaheen is welcome to try to change the rules of the U.S. Senate. She should not be allowed to ignore them. I suspect she’ll recognize this wisdom if she ends up with 51 Republican colleagues in January 2015.
(Grant Bosse is editor of New Hampshire Watchdog, an independent news site dedicated to New Hampshire public policy. He is a senior fellow at the Josiah Bartlett Center for Public Policy.)