Learning to love the nuclear option

The word “filibuster” sounds silly, like the name of a pompous but ultimately well-meaning character in a Dickens novel. The phrase “nuclear option,” on the other hand, sounds terrifying.

So now that the Republicans have used the nuclear option to kill the poor filibuster to clear the way for the elevation of Judge Neil Gorsuch to the Supreme Court, we can lose perspective. In truth, eliminating the filibuster is a minor change compared with the problem that such a move takes a step toward solving: the recent rise of a system based on supermajority rule rather than majority rule.

Of course, the modern filibuster, which remains in effect for legislation, doesn’t require senators to give speeches through the night. It’s all very abstract; in the case of nonspending bills, the minority party simply let it be known that it has enough votes to block the legislation.

In effect, the minority party now gets to decide when a bill should require 60 votes instead of 51.

Th switch to supermajority rule happened without a constitutional amendment, without a national debate, without its even becoming a major issue in a presidential campaign. Because it happened gradually, we didn’t fully appreciate: The 788 filibusters since 2007 — those were the “nuclear” moments.

It’s also confusing that the Republicans are saying: Don’t worry. Although we’re ending the filibuster against Supreme Court nominees, we’ll still allow the procedure to block legislation. If anything, there’s more of a case for eliminating the filibuster for congressional bills than for the court. If a horrible justice gets on the court, he or she is there for life; if a destructive piece of legislation gets through, it can be repealed.

I remember vividly when I first became aware that the “Schoolhouse Rock” version of how a bill becomes a law had quietly disappeared. I was covering Congress for Newsweek during the Clinton administration. The Democrats were pushing legislation to create a national service program, which had broad support.

In the middle of the process, the White House was notified that they would need 60 votes, not 51. No Republicans staged a sit-in. No one wheeled in cots so that elderly lawmakers could nap during long hours of speechifying. The minority leader, Bob Dole, just informed the majority leader that 40 Republicans opposed the bill, so they were going to switch to the supermajority system, thank you very much.

The consequences for regular Americans can be significant. Under the filibuster rules in place at the time of the New Deal, Republicans could have blocked the Security Exchange Act, the National Labor Relations Act and the Tennessee Valley Authority, according to the journalist Charles Peters’s new book, “We Do Our Part.”

And if the Senate had been operating under majority rule during the Obama and Bush administrations, the following bills would have gained Senate approval: the Toomey-Manchin background check bill for guns; the provision allowing people to have a “public option” for health care on the Obamacare exchanges; comprehensive immigration reform; an increase in the minimum wage; and the bipartisan campaign finance bill, called the Disclose Act.

If the Senate majority leader, Mitch McConnell, next eliminates the filibuster on legislation, the Democrats’ reaction may end up being less anger than regret (as in, “Why didn’t we think to do that?”). President Barack Obama’s legacy would have been different had majority rule been in effect.

This may be an area in which President Trump’s disregard of tradition can work to his advantage, at least in the short run. Democrats are justified in worrying that Mr. Trump could get through more of his agenda in a majority-rules environment.

But in the long run, if Republicans remove the filibuster for legislation, they may regret it. They have been the bigger beneficiary of the practice. From 1999 to 2006, when the Republicans controlled the Senate, the Democratic minority used the filibuster 272 times. By contrast, from 2007 to 2014, when the Republicans were in the minority, they used it 644 times, more than twice as often. The average filibuster per congressional session under President Obama was 158; under President George W. Bush it was 85.

Much has been written about why use of the filibuster grew rapidly in recent decades. From World War I until 1970, Congress averaged less than 10 filibusters each congressional term. In 1975, the Senate eliminated the requirement that to maintain a filibuster, senators had to literally stay on the floor talking. It went from being arduous to easy. Some argue that the situation worsened as voters elected fewer conservative Democrats and liberal Republicans, who had made bipartisanship more common and filibusters less necessary.

Perhaps more modest reforms — like restoring the “talking filibuster” — should be tried first. That would reduce the abuse and instill more accountability. Elected officials could better fulfill their campaign promises, and voters could better judge whether they like the result.

But if the Republican leaders decide to go all the way and drop the filibuster on legislation too, let’s at least remember that the bigger threat to democracy is not the scary-sounding nuclear option but the thing it blows up.

©2017 The New York Times News Service