A Brief Look into Previous Senate Bipartisanship

Early leaders of the United States attempted to imbue the Senate with values of bipartisanship and restraint in order to protect it from the divisive relations in the House and in the nation itself. The Senate website touts these values, explaining that “To the framers themselves, Madison explained that the Senate would be a “necessary fence” against the “fickleness and passion” that tended to influence the attitudes” in the rest of the country. 

Though not specifically envisioned by the framers, the filibuster is a tool that was later developed to prevent simple majoritarian rule and mitigate divisive attitudes. Since 1837, senators in the minority have been allowed to filibuster to prevent legislative measures from coming to a vote. A senator could singly exercise this power up to 1917, but as a courtesy, the strategy was only employed once all other options had been exhausted [2]. Accordingly, the use of the filibuster during this time was incredibly sparse. The 1917 cloture rule, created in response to a slight increase in the prevalence of filibusters, allowed two-thirds (now three-fifths) of the Senate to vote to end debate [2]. With the advent of the cloture rule, efficiency in the Senate was improved to some degree while preserving the intent of the filibuster and the power of the minority. In over a century of existence, the filibuster was rarely exploited and chiefly served its function due to mutual respect for its role. Senators operated according to unspoken norms and invoked the spirit of the law rather than its literal text, a practice to which Levitsky and Ziblatt attribute the success and longevity of American democracy [2].

Norms Under Fire

The mutual respect that protects these norms is becoming harder and harder to discern in the highest levels of American government. A potential change in precedent from the 60 vote threshold to a 51 vote threshold was termed the “nuclear option” in 2003 by GOP Majority Leader Trent Lott, as the repercussions seemed unimaginable on either side of the aisle. The change was considered by Republicans in an attempt to block a filibuster by the Democrats but the option was not actually employed at the time. Just a decade later, the consequences of decimating such a norm no longer seemed so disastrous as to eliminate the option from consideration. In 2013, Majority Leader Harry Reid and nearly all of his fellow Democrats lowered the threshold for the cloture rule to a simple majority of 51 votes for non-Supreme Court federal judicial nominees and Executive Branch appointees.

Just 6 years later, the nuclear option has been invoked multiple times, with the confirmations of Trump appointees Neil Gorsuch and Brett Kavanaugh to the Supreme Court. More recently, the change was used by Republicans to confirm Executive Branch appointees, following in the footsteps of 2013 Democrats. Now, President Trump’s often highly controversial nominees need just 51 votes, expediting their path through the Senate to confirmation. The return of the nuclear option to the public eye has illustrated the severity of the partisan divide in the United States as the concentration of power has changed hands and strategy has been forced to adapt.

Hypocrisy Across the Aisle

There has not been a consistent group of Senators (except Joe Manchin (D-WV)) in favor of retaining the three-fifths cloture rule; the votes on the nuclear option instead have been nearly perfectly aligned with the temporal majority-minority cleavage. Republicans who bristled at Harry Reid’s use of the nuclear option in 2013, criticizing it as a blow to Senate tradition, now invoke the event as justification for their own lowering of the criteria. Democrats who argued the nuclear option was the only remaining pathway now claim that they regret using the rule and lament the debasement of the Senate. An exchange between two of the most prominent members of the U.S. Senate, current Minority Leader Chuck Schumer (D-NY) and current Senate Majority Leader Mitch McConnell (R-KY) captures the animosity and pettiness associated with the nuclear option:

Schumer asserted that he was “so sorry that my Republican colleagues have gone along with Sen. McConnell’s debasement of the Senate.” The New York Democrat called the change “disgraceful” and said it was a “sad day in the Senate’s history.” 

McConnell absorbed the criticism, cracking a smile at times as Schumer castigated him. Then he stood up and said Schumer was responsible for the quagmire, having launched filibusters of President George W. Bush’s nominees.

“He started this whole thing,” McConnell said, pointing at Schumer. “This is not a sad day. This is a glad day.”

Politico, “Republicans trigger ‘nuclear option’ to speed Trump nominees“

Legitimacy of Norms and Opposition Parties?

The combination of partisan enmity and disregard for norms and precedent is a dangerous combination. Not only will precedent be trampled if it loses its high esteem, but it can also be turned into a weapon for partisan causes. Ginsburg and Huq write, “The dearth of democratic commitment to the legitimacy of opposition seems to have a bilateral character–a structural feature that does not bode well for a shared future” (127) [1]. Increasingly, partisans on both sides of the ideological spectrum see the opposition as their enemy, severely diminishing incentives to cooperate. When leadership by the opposition is seen as apocalyptic, violating norms becomes an issue of survival and facilitates justification of those actions, both to party elites and the general public.

The longevity of a Supreme Court position perhaps best illustrates this danger. With only 9 justices, each Supreme Court appointment has lasting implications for the direction of the country. With the lower threshold for confirmation, presidents can increasingly nominate judges that not only interpret the Constitution with a more liberal or conservative lean, but also do the bidding of the president and the establishment party. The norm of the three-fifths cloture rule forced bipartisanship and protected against extremists from either wing and without it, the Senate is more susceptible to hijacking.

The use of the nuclear option since its first implementation in 2013 has demonstrated the danger of changing precedents, particularly when those alterations are solely for partisan gain. When Reid first invoked the rule, McConnell said, “You’ll regret this, and you may regret this a lot sooner than you think.” What McConnell missed was that the remorse should not be directed toward future partisan losses but rather toward American democracy at large.

Academic Sources

[1] Ginsburg, T., & Huq, A. Z. (2018). How to save a constitutional democracy. Chicago: The University of Chicago Press.

[2] Levitsky, S., & Ziblatt, D. (2019). How democracies die. London: Penguin.