Opinion: Partisan Blockage

Can American democracy survive modern America?

As this country's people have been ripped apart of late, leaving two often-irrational tribal factions—conservative and liberal—that question has become ominous. The era of even vague respect for political opponents is gone. For too many liberals, conservatives are gun-toting, racist fanatics who win political office by fraud and are dedicated to establishing a Christian theocracy run by greedy plutocrats as part of a plan to destroy America. For too many conservatives, liberals are baby-killing, lazy takers who win political office by fraud and are dedicated to imposing a socialist empire run by a Muslim Kenyan.

If those descriptions struck you as absurd, please continue reading. On the other hand, if you nodded your head and screamed, "That's right!" please go back to surfing your favorite conspiracy sites and devouring the rabid anti-other-side "news" reports. The adults want to have a serious conversation.

As I write this, America is heading toward the final day of the 2014 election and polls suggest Republicans will make gains in the Senate and possibly even have a majority there. If so, congratulations. However, if this victory means the government will grind to a halt for the next two years while Congress launches pointless "investigations" of the executive branch, it will signal that American democracy is in its death throes.

If the Capitol becomes All-Benghazi-All-the-Time or we are deafened by screams for impeachment based on what are really just reasonable disagreements about the power afforded the executive branch under the Constitution, then we have clearly demonstrated that we are not mature enough to handle the form of government created by the Founding Fathers.

In Focus

Photos: Midterm Elections 2014

Americans will determine whether Republicans or Democrats will hold the majority in the U.S. Senate when they head to the polls to vote in midterm elections Tuesday

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For example, let's talk about a critical piece of the Constitution that has recently been abused to the point of absurdity: The Senate's "advice and consent" power relating to presidential nominations for cabinet positions, judicial seats, ambassadorships and the like. The purpose of that was not to guarantee that a president's nominees shared the political philosophy of the majority in the Senate. Rather, it was nothing more than a check on flagrant abuse.

This is quite clear in The Federalist Papers "Number 76," written by Alexander Hamilton. In this missive to the state of New York, Hamilton addressed the debate about whether a president should be allowed to appoint people to high office without restriction. Hamilton wrote that giving the president the sole power to select people for high government positions had the potential for abuse. Giving a consent power to the Senate would avoid that, he wrote, because it would discourage the president from nominating cronies or buffoons. But the Senate would never reject worthy candidates out of spite or politics, he opined; the idea made no sense. As conservative think-tank the Heritage Foundation wrote in a recent report, "The principal concern of the Framers regarding the Appointments Clause, as in many of the other separation of powers provisions of the Constitution, was to ensure accountability while avoiding tyranny."

In the early days of our nation—hell, for the first two centuries—the advice and consent clause was nothing more than a mechanism to ensure that any White House would resist appointing someone of such limited qualification that the nominee's incompetence or venality would be exposed by the Senate's rejection.

Enough of the history lesson. The Senate is not supposed to drive the choice of officials for government office through the advice and consent clause. When confronted with that argument, conservatives will often grouse about the ugly battles in 1987 over the nomination of Robert Bork for the Supreme Court. And guess what? They're right. While Bork's judicial philosophy gave me the heebie-jeebies, to argue that he was unqualified for the high court or that President Reagan had no right to nominate him was self-deluded sophistry.

But Republicans have little cause for complaint about the Bork nomination anymore, for during the Obama administration they have turned the Appointments Clause into a cudgel, a travesty that would leave the Founders retching. By perverting the Appointments Clause and wielding the threat of filibuster, Republicans have hijacked democracy. Under the rules of the Senate, any member can filibuster—in other words, stop or delay—allowing the body to take action. That filibuster can only be overcome by passing what is known as a cloture vote, which requires support from 60 Senators. For those choosing to manipulate the power granted by the Founders, the works can be gummed up by taking the advice and consent authority—intended to merely weed out corrupt or incompetent nominees—and turning it into a system of blackmail where a president can only name officials to high office by clearing a 60-vote margin needed to end a filibuster.

For the first five years of the Obama administration, Republicans in the Senate turned this into a mechanism to undermine the presidency. From the administration of George Washington to that of George W. Bush, there were 86 nominees blocked by the Senate using this tactic. That compares to 82 in the first five years of Obama. That's right—more presidential nominees were blocked by the Senate from 2009 to 2013 than from 1789 to 2008. Not only that, from 1949 through 2008, only 20 nominees to serve in the executive branch—as opposed to judges—were blocked by failed cloture votes. Obama has had about the same number, including a chairman of the Federal Reserve, a director of the Central Intelligence Agency, and the first Secretary of Defense nominee subjected to a cloture vote as well as the first Surgeon General. All of those people eventually received the consent of the Senate when the body was finally allowed to vote (except for the nominee for Surgeon General, who is on life support.) In other words, the majority of the senators were willing to consent to the nominees; they just resisted fulfilling their constitutional duty for months on end by refusing to allow a vote.

This abuse of the filibuster was so relentless that in 2013, Senate Majority Leader Harry Reid invoked what is known as the "nuclear option," which allows the Senate to override a rule by majority vote. Democrats then approved a rules change that eliminated the use of filibusters on presidential nominations other than those to the Supreme Court. While some historically impaired Republicans howled that this was some terrible abuse of power, the nuclear option goes back a long way—it was invoked as a threat in 1917 to change some Senate rules and was used to make other changes in 1975. None other than Richard Nixon, when he was serving as vice president, wrote a legal opinion in 1957 declaring that the nuclear option was valid.

But the changes last year that allowed for the Senate to resume its role under the Appointments Clause by giving an up-or-down vote on presidential nominees could now be meaningless. If the Republicans have the majority and continue to block most—or even every—important presidential nomination, there is nothing the Democrats can do. Every Obama nominee for the next two years can be rejected by the Senate.

Which brings us back to the original question: Can American democracy survive us? Can we set aside our petty bickering, ignore the clamorous hordes driven to rage by the rabidly partisan websites and cable channels, and set about the business of governing? Can we finally learn to respect the outcome of elections, understand that governance is about compromise and stop behaving like spoiled brats?

Unfortunately, the answer is "probably not." We have fallen too far into mutual hatred and lost too much of our understanding of what it means to be Americans. Ladies and gentlemen arriving in Washington thanks to this election: Welcome. Now prove me wrong. Please.