Yes They Can

If you're a Democrat, chances are that on more than a few occasions in the last few months, you've heard about the latest tactical maneuver from Republicans in Congress and said, "This time they've gone too far. Surely they'll pay a price for this latest outrage."

Maybe it was when they filibustered a defense-appropriations bill (not supporting our troops!). Or maybe it was when, just after the attempted Christmas bombing, they held up confirmation of the man President Barack Obama appointed to head the Transportation Safety Administration, leaving the agency leaderless. Or maybe it was the "Shelby Shakedown," when Alabama Sen. Richard Shelby put a "hold" on 70 administration appointees so he could get some pork for his home state. Or maybe it was the way they argued that trying terrorist suspects in civilian court made Obama soft on evildoers, when the Bush administration did the same thing hundreds of times.

Every society has its rules and its norms. The former come with penalties, but the latter persist only so long as the community has some kind of informal enforcement mechanism. We used to have laws against adultery, but today marital fidelity is a norm -- you can't be imprisoned for violating it, but if it is revealed, you may suffer some public shaming. In Washington, it turns out, many of the norms people thought existed can be violated without cost.

When this session of Congress started, Republicans said to themselves something like the following: It's true that the minority in the Senate has never tried to filibuster everything, but what's to stop us? Democrats may complain about obstructionism, but to most of the Americans who pay only passing attention to politics, it just looks as if "Washington" can't pass anything -- not that one party is at fault. So the minimal cost of looking obstructionist is far outweighed by the political benefit of keeping the Democrats from accomplishing anything.

It isn't as though the Democrats didn't use the filibuster when they were in the minority. But they never did it to the extent Republicans do now -- not because the thought never occurred to them but because they considered it to be a violation of a norm, for which they might be punished in some way. You can see the same spirit today, when the prospect of using reconciliation to pass health-care reform -- which would mean only a 51-vote majority of the Senate would be required, instead of a 60-vote supermajority -- is considered. The very thought gives some Democrats like Sen. Evan Bayh of Indiana the vapors. "Just ramming through a bill on a purely party-line vote on a strictly partisan basis," Bayh said, "will not do much to generate the kind of progress around here on other issues that we need." Because if they used reconciliation for health care, Republicans might lose interest in bipartisanship. Bayh, whose procedural criticisms are nearly always leveled at his own party, announced that instead of doing what he can to get legislation passed, he's packing it in, and he won't be running for re-election this year.

This audacity gap in American politics can be traced back as far as you like. But in its most recent incarnation, it dates to the disputed 2000 presidential election in Florida. Again and again, Republicans looked at prevailing norms and realized that there was no cost to violating them. It's true, they might have said, that nobody in this country has ever decided to organize a small riot to intimidate election officials and shut down vote-counting that might not go our way. But what's to stop us? It's true, the five conservatives on the Supreme Court might have said, that no Court has ever issued as blatantly partisan a decision as the one in Bush v. Gore, going so far as to write that "our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," lest any future appellant try to hold them to their atrocious reasoning. But what's to stop us? It's true, Karl Rove might have said, that firing U.S. attorneys if they refuse to turn their offices into arms of the Republican National Committee might never have been done before. But what's to stop us?

Again and again, the answer to the question "What's to stop us?" turned out to be "Nothing."

And now all kinds of norms are being cast aside. Consider the case of Craig Becker, whom President Obama nominated for a seat on the National Labor Relations Board. The old norm said that Republican nominees to this board will come from the business management side and be generally hostile to labor rights, while Democratic nominees will come from the labor side and be generally favorable toward those rights. Becker doesn't have a criminal record, or unpaid taxes, or a paper trail of radical views. But the Republicans filibustered his nomination anyway. Why? He is a labor lawyer who previously served as associate general counsel for the Service Employees International Union. He comes from the labor side, and therefore Republicans refuse to allow a vote on his nomination. Meanwhile, with only two serving members, the NLRB's work has slowed considerably, and it may not even be legally permitted to make decisions,something the Supreme Court is set to decide later this year.

So in order to free this hostage, Obama could do what previous presidents of both parties have done when their nominees ran into what they considered unfair opposition: use his power of recess appointment to install the nominee in the job while Congress is on a break. Bill Clinton made 139 recess appointments, while George W. Bush made 171, according to the Congressional Research Service. To date, Obama has made zero, and he has already told Republicans he won't make any during the upcoming recess, even though dozens of his nominees are being held in limbo by the GOP.

What we are left with is a situation in which one party is assiduously adhering to the norms it believes are still in place, while the other party long ago concluded that norms are meant to be ignored. Republicans aren't so much the "party of no"; they're the party of "yes we can" -- yes we can filibuster everything, yes we can put holds on nominees for no good reason, yes we can argue in the most dishonest ways imaginable (see panels, death), yes we can be as hypocritical as we like. The Democrats, on the other hand, continue to be the party of "maybe we shouldn't."

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