Nullification and Democratic Norms

Tom Mann, who I generally figure is right about everything — and who in general is not given to exaggeration or sensationalism — tells Jonathan Cohn that the current GOP practice of undermined laws by blocking confirmation is a modern-day form of nullification:

In the case of the Consumer Protection Board, Senate Republicans have said they would not confirm anyone who does not agree to restructure the leadership of the agency from a single person to a multi-member body. They insist that a legitimately passed law be changed before allowing it to function with a director – a modern-day form of nullification. Same with the director of the Center for Medicare and Medicaid Services. There is nothing normal or routine about this. The Senate policing of non-cabinet appointments is sometimes more aggressive but the current practice goes well beyond that, more like pre-Civil War days than 20th century practice.

I’d put this in a bit of a broader context, too. What I’d say is that this is consistent with previous examples of something I’ve written about before, and which Mark Tushnet calls “Constitutional hardball.” The GOP practice, for the last twenty years or so, has been to play the “game” of politics in part by looking through the rule book for strategies that go beyond the norms of politics but are allowed under the literal reading of the rules. Examples include mid-decade redistricting, the recall of a California governor for no particular reason, and impeaching Bill Clinton. And, most notably, filibusters in the Senate as a routine measure. The idea is that in a normal, healthy, political system there’s always going to be some gap between the written Constitutional and statutory rules on the one hand, and norms and practices on the other. A clever political party can gain occasional short-term advantages through exploiting that difference. Hmmm…19th century baseball: I seem to recall a story that someone (perhaps King Kelly?) was sitting on the bench when a pop foul came near him. Springing into action, he announced “Kelly in at catcher for Smith” and caught the ball for an out, pointing out after the fact to the umpire that nowhere in the rules did it say that substitutions couldn’t take place in mid-play.*

How do you fight back? Well, one can adjust the rule book to prevent future advantage, although that tends to be a lot harder in politics than it is in sports. Mostly, however, the other side can just threaten to fight fire with fire. In the case of nominations, that means recess appointments even in questionable circumstances, or action by the Senate to eliminate or curtail filibusters by majority rule. At the very least, Barack Obama and the Democrats should be threatening such action, and if necessary they should act.

I suppose I should also mention that Constitutional hardball is a destructive practice that places short-term partisan gains over the stable functioning of democracy, and that people shouldn’t do that sort of thing. But once one side begins, there’s really no good option other than fighting back.

*Someone, I hope, will correct my memory on this one, which I didn’t look up, but there are many such stories about 19th century baseball, most of them surrounding the old Orioles, and there’s every possibility that some of them are true.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.