The Senate Gets MAD
The politics and psychology of the "nuclear option."
By James Taranto @jamestarantoJames.Taranto@wsj.com
November 22, 2013
The real question isn't why Harry Reid and his Senate Democrats went "nuclear" yesterday but what took them so long. By a 52-48 vote, along party lines apart from three Democratic "nays," the Senate effectively abolished the filibuster for executive-branch and judicial nominees (except for the Supreme Court). Henceforth it will take only a simple majority, not a three-fifths supermajority, to bring such nominations to the floor for an actual vote, so that a minority of senators will no longer be able to block a nominee's confirmation.
There's been talk of the majority's exercising the "nuclear option" for years. In 2005 Republicans, then in the majority, seriously considered it to stop Democratic filibusters of George W. Bush's judicial nominees. The plan was thwarted when a "Gang of 14," seven senators from each party, reached an agreement to preserve the existing rule in exchange for preventing most judicial filibusters until the seating of the next Congress, in 2007. The 14 senators were able to enforce their agreement because the 48 remaining Republicans weren't enough to change the rule and the 38 remaining Democrats weren't enough to sustain a filibuster.
By the time the agreement expired, Democrats had taken the Senate majority. The filibuster became relevant again two years later, when they also took the White House. Even before Election Day 2008, as we noted at the time, there was talk of invoking the nuclear option. Having done so certainly would have served the Democrats' interests over the past five years. Not only would Republicans--who've remained in the minority since--have been unable to block nominees, but the absence of the legislative filibuster (still in force after yesterday) would have eased passage of ObamaCare by allowing some Democrats to vote against it and by giving the Senate majority a free hand to rewrite the legislation after they lost their 60th vote in January 2010.
Majority rule is always in the immediate interest of the majority party. But there are three countervailing incentives that have stopped majority senators from supporting a change in the rules: ideological moderation, concern for the institutional power of the Senate, and long-term self-interest. The first two of those incentives have gradually weakened for political reasons. The third suddenly broke down for perverse psychological reasons.
Each party used to have a fair number of ideological outliers: liberal Republicans and conservative Democrats, or "moderates" if you prefer. Most of the Gang of 14 fit this description: They included liberal Republicans Lincoln Chafee and the Maine Ladies as well as Democrats Ben Nelson, Joe Lieberman and Mark Pryor. Of those six, only Pryor and Susan Collins are still in the Senate. Of the 14, only five are.
Of the nine who've departed, eight have been replaced by either liberal Democrats or conservative Republicans. The lone exception, Robert Byrd of West Virginia, was replaced by Joe Manchin, one of the three Democrats who voted against the nuclear option. Pryor was also among the dissenters. The general trend, in the Senate as in the country, has been toward ideological polarization of the parties.
The end of the filibuster entails a serious diminution of the Senate's power vis-à-vis the president and the House. As we observed this July, the Senate's power consists largely in its ability to withhold consent from both House-passed legislation and presidential actions (nominations and treaties). Thus majority rule enhances the power of the majority party at the expense of every individual senator, regardless of party.
As the Senate has become more partisan, and members elected during an earlier age have retired or died, concern for the Senate's institutional power has diminished. Yesterday's third Democrat dissenter, Carl Levin of Michigan, is one of only three remaining Democrat senators first elected before 1984.
But there's also a partisan incentive for restraint: A change in rules to benefit today's majority party will also benefit the other party the next time it is in the majority. It's called the "nuclear option" because it entails mutually assured destruction of the rules that benefit the minority. If the Republicans had gone nuclear in 2005, the Democrats would have reaped the benefit in 2009.
Once the filibuster is gone, it's as good as forever gone. There is no incentive for any majority party to reinstate it. Nor is there any reason to expect that future majorities will respect what's left of it. If a Democratic minority in 2017 tries to filibuster a Republican Supreme Court nominee, the Republicans will surely follow yesterday's precedent. The legislative filibuster may prove more robust, but one suspects our hypothetical Republican majority would abolish it if that's what it takes to repeal ObamaCare.
What's peculiar about the timing of the Democrats' decision is that it comes just when the partisan risk of abolishing the filibuster has been heightened. As the Washington Post's Ezra Klein acknowledges:
There's a lot of upside for Republicans in how this went down. It came at a time when Republicans control the House and are likely to do so for the duration of President Obama's second term, so the weakening of the filibuster will have no effect on the legislation Democrats can pass. The electoral map, the demographics of midterm elections, and the political problems bedeviling Democrats make it very likely that Mitch McConnell will be majority leader come 2015 and then he will be able to take advantage of a weakened filibuster. And, finally, if and when Republicans recapture the White House and decide to do away with the filibuster altogether, Democrats won't have much of an argument when they try to stop them.
"The political problems bedeviling Democrats" is a marvelous bit of understatement. The abject failure of ObamaCare has made the prospect of a Republican Senate in 2015 and a Republican president in 2017 much likelier. Thus even from a purely partisan standpoint, rational Democrats would have been more cautious about invoking the nuclear option when they did than at just about any other time in the past five years.
The Democrats were not acting rationally in the view of NBC's Chuck Todd, who's quoted by Mediaite.com:
"Right now, don't forget, the base of the Democratic Party--particularly the activist base--not in a good place, not feeling good about health care," Todd told MSNBC anchor Andrea Mitchell.
"This has been something that many in the activist base of the Democratic Party have been wanting Harry Reid to do for a while," he continued. "So, I think this is also about a moment of reassurance to the Democratic base who is feeling a little bit, you know, under attack and under siege a little bit because of how poorly the health care rollout is going."
In at least one respect Todd's observation about the "activist base" is probably incorrect. It is our understanding that the Supreme Court exception was included to satisfy pro-abortion extremists, the most active and basest part of the activist base. The Wall Street Journal's Laura Meckler reported yesterday that the two biggest such groups, Planned Parenthood Federation of America and NARAL Pro-Choice America, both declined comment on the nuclear move, "leaving it unclear whether they are concerned about their ability to block future objectionable"--i.e., Republican--"nominees."
And to the extent that Todd is right, his analysis is unsatisfying, almost question-begging. His observation that "the activist base" provided the motivation is another way of saying that the Senate (on the Democratic side, at least) has become more ideologically polarized. But that's a long-term trend. It doesn't explain why it happened yesterday as opposed to a few months or a year or a few years ago.
For an answer to that question, we turn to behavioral economics. In his book "Thinking, Fast and Slow," which we quoted in May, psychologist Daniel Kahneman explains the idea of loss aversion:
When directly compared or weighted against each other, losses loom larger than gains. This asymmetry between the power of positive and negative expectations or experiences has an evolutionary history. Organisms that treat threats as more urgent than opportunities have a better chance to survive and reproduce.
That insight is the basis of prospect theory, which posits that people will take bigger risks in the hope of minimizing a loss than in the hope of maximizing a gain. The psychological impact of the loss itself clouds one's thinking about the risks of magnifying the loss. That explains why the Democrats went nuclear just as the perils of doing so multiplied.
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