The damage is done

Seven years ago, when the Democrats in the U.S. Senate filibustered several of President George W. Bush’s judicial nominees, Republicans floated the idea of using a parliamentary maneuver to confirm them by a simple 51-vote majority. It was called the “nuclear option,” because of its power to cause havoc.

Republicans were frustrated. “The Senate has a constitutional responsibility to vote on nominees,” the White House said, adding that the process had become “worse than it’s ever been before.” Minority leader Tom Daschle (D–S.D.) denied that this was so. “If it ain’t broke,” he said of the Senate’s 60-vote rule, “don’t fix it.” Sen. Charles Schumer (D–N.Y.) agreed, placing the blame for the impasse on the President: “When the White House wants to show some degree of moderation, the system works well,” he said.

On May 27, 2003, the New York Times warned of the damage that would be caused to democratic legitimacy by such a change:Republicans, who now control all three branches of the federal government, are not just pushing through their political agenda. They are increasingly ignoring the rules of government to do it. . . . These partisan attacks on the rules of government may be more harmful, and more destabilizing, than bad policies, like the $320 billion tax cut. Modern states, the German sociologist Max Weber wrote, derive their legitimacy from “rational authority,” a system in which rules apply in equal and predictable ways, and even those who lead are reined in by limits on their power. When the rules of government are stripped away, people can begin to regard their government as illegitimate.Two years later, without having detonated the option, Republicans backed down. Led by Sen. John McCain (R–Ariz.), they fashioned a bipartisan compromise by which some of Bush’s nominees would be brought to the Senate floor for a vote (and some would be forever held up), avoiding the damage of “ramming them through.”

Fast forward seven years. What the Republicans either lacked the political audacity or showed the political diffidence not to do (depending upon your opinion of them), the Democrats under Speaker Nancy Pelosi and President Barack Obama have now done, passing a deeply unpopular “health care” scheme by changing the rules to do so. Megan McArdle of the Atlantic writes:Are we now in a world where there is absolutely no recourse to the tyranny of the majority? Republicans and other opponents of the bill did their job on this; they persuaded the country that they didn’t want this bill. And that mattered basically not at all.McArdle is terrified by what the Republicans may now do when (as, inevitably, they will) regain the majority. Victor Davis Hanson says much the same thing:In the future when the Republicans gain majorities (and they will), the liberal modus operandi will be the model—bare 51% majorities, reconciliation, the nuclear option, talk of deem and pass, not a single Democrat vote—all ends justifying the means in order to radically restructure vast swaths of American economic and social life.I hope both McArdle and Hanson are wrong, and I hope that Republican cowardice or restraint during the Bush years (again, depending upon how you view it), is the past that is prologue to future Republican “control.”

But the point is that, in Sen. Schumer’s words, the system worked well. The American public made itself heard through opinion polls, meetings, marches, petitions, and three elections in which Republicans handily defeated their Democratic rivals, in one case—the special election in Massachusetts to fill the term of the late Edward M. Kennedy—in which the Republican candidate explicitly campaigned to become the senator who would deny the Democrats sixty votes for “Obamacare.”

And as McArdle says, in the end none of it made any difference. Instead of showing “some degree of moderation,” the White House went nuclear. And whatever the harms that will be caused by “Obamacare”—the Wall Street Journal is particularly good on that question this morning—they will shrink to nothing, I fear, in comparison to the damage that was done last night to our democracy.