Beware Institutional Changes for Short-term Gains
The recent debate in Washington over Democratic proposals to change the Senate filibuster was only the latest example of political forces seeking to change rules and procedures in order to advance their perceived interests.
A few years ago, Donald Trump urged the narrow Republican Senate majority to dispense with the filibuster to overcome Democratic obstruction. Mitch McConnell wisely declined to make the effort. Then it was Joe Biden and Chuck Schumer’s turn to propose a rule change to ease passage of their preferred election bills. Making much the same argument that McConnell had made, Sens. Kyrsten Sinema and Joe Manchin bucked their party to preserve the filibuster. Alongside principled arguments about the protection of minority rights and promotion of deliberation and consensus, Sinema and Manchin have argued that elimination of the filibuster could easily come back to haunt their party in short order, whenever another Republican president with a small Senate majority would be able to impose his will.
Although the assault on the filibuster appears dead for the moment, we have surely not seen the end of proposals by the majority (of either party) to use control of the rules to seek short-term advantage. It will be worth remembering that McConnell’s, Sinema’s, and Manchin’s warnings to fellow partisans are well-grounded. There are few rules in American politics plainer than this: Changing procedures and institutions to gain short-term partisan or ideological advantage rarely works out as planned. Few who try it escape unbitten.
Exhibit number one is so recent it is hard to believe that Democrats would have already forgotten it. In 2014, frustrated by Republican senators delaying several of Barack Obama’s lower court appointments, Senate Majority Leader Harry Reid engineered the abolition of the filibuster for district and circuit court nominees. Later that year, Republicans won a majority in the Senate. When Donald Trump became president in 2017, Republicans pointed to the Reid precedent as justification for eliminating the filibuster for Supreme Court appointments, as well. Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were the result.
Other examples abound. Prior to 1910, the Speaker of the House appointed the chairs of all committees (among other outsized powers he possessed). A coalition of Democrats and progressive Republicans changed the rules, replacing the power of the Speaker with the power of seniority. By 1975, liberal Democrats found their priorities stymied by a set of Southern Democrats who were chairing powerful committees on the basis of their seniority. They changed the rules again, putting more power back in the Speaker and making chairs subject to approval by the party caucus. After Republicans gained control of the House in the 1994 elections, incoming Speaker Newt Gingrich used the bolstered powers of the Speaker to install supporters of the Contract with America and tight budget control in key chairmanships, leapfrogging more senior members.
Another progressive innovation, the 17th Amendment, also turned against its ideological sponsors. The Amendment took election of U.S. Senators out of the hands of state legislatures. Instead, the people would elect senators directly. There is an ongoing debate over whether and how much the 17th Amendment contributed over time to the centralization of American government, but one thing is clear: the Reagan Revolution, which depended on the leverage of a Republican Senate, might not have happened without it. After the 1980 election, Democrats controlled the legislatures in 28 states to only 15 under GOP control (the rest were split). After 1982, the Democratic lead grew to 34-10, before shrinking to 28-10 after 1984 and 27-9 after 1986 (when Republicans finally lost the Senate majority in actuality). We cannot rule out the possibility that state legislative results might have been different if voters knew the U.S. Senate depended on them, but by all appearances there would not have been a Republican Senate from 1981-87 without the 17th Amendment. Thus both the Reagan Revolution and New Gingrich’s aggressive assault on the welfare state after 1994 were greatly facilitated by progressive era reforms.
I have already detailed here how reconciliation rules, initially used to control spending and deficits with a simple Senate majority, were turned by George W. Bush into a mechanism to cut taxes and then by Barack Obama and Joe Biden into a device to massively expand spending.
Not least, liberal Democrats, led by George McGovern, altered presidential nomination rules to significantly curtail the influence of the party establishment, changes which ultimately affected both parties. The two greatest beneficiaries of the new system? Outsiders Jimmy Carter, a moderate Democrat whose failures as president led to the election of Ronald Reagan, and Donald Trump. Not the picture the party reformers had in mind.
The most recent state additions provide an example in the breach. Generally resisting the temptation to add states for partisan gain, Congress frequently paired states to maintain balance. In 1959 and 1960, Alaska was added as the 49th state and Hawaii as the 50th. The assumption at the time was that Hawaii would be a Republican state and Alaska reliably Democratic. Balance was, in fact, maintained. Except in landslide years such as 1964, 1972, and 1984, Alaska has been reliably Republican and Hawaii consistently Democratic in presidential elections.
The lesson? In the heat of the moment, it may seem like a good idea to change rules to win a short-term advantage. But once new rules are in place, anyone can use them, and for whatever end they want. Republicans dodged a bullet when McConnell held firm for the filibuster against Trump’s short-term calculus. Democrats are crying now, but they may have dodged a bullet, too.
Andrew E. Busch is Crown professor of government and George R. Roberts fellow at Claremont McKenna College.
