Republicans Think Capitol Hill’s Rules Are for Suckers

To an impressive extent, the story of Barack Obama’s presidency was written by Republican congressional leaders, who recognized that Robert’s Rules of parliamentary order weren’t binding on anyone—but that Democrats would proceed as if old comities would ultimately prevail.

For years before the 2008 election, Senate filibuster rules had been put to slowly increasing use, but when Mitch McConnell became minority leader in 2007 he turned supermajority requirements into the expectation rather than the exception. The GOP’s massive-resistance approach to obstructing Obama’s agenda was an innovation, but to people paying attention to the late George W. Bush years it wasn’t unexpected.

After regaining power in Congress, Republicans would later weaponize the debt limit and other basic, deadline-driven legislative responsibilities. They used hostage-taking tactics to impose a conservative agenda on Democrats, rather than negotiate with them toward mutually agreeable compromises. This pattern prefigured the death of Supreme Court Justice Antonin Scalia and McConnell’s decision to void Obama’s power to appoint a new justice with a full year left in his second term.

As Obama prepares to cede power to Donald Trump, GOP congressional leaders are preparing a transition of their own: from traducing congressional norms in the service of hampering Democrats, to traducing congressional norms in the service of helping themselves and the new Republican president.

It is unremarkable that Republicans are using power in the days before Trump’s inauguration to lay groundwork for their legislative plans, and the executive branch’s administrative agenda. What’s extraordinary is the insouciance with which Republicans are embracing procedurally extreme tactics they never would have tolerated from Democrats.

Normally in the course of a presidential transition, the incoming administration would vet its nominees and provide relevant documentation to the Office of Government Ethics and Senate committees of jurisdiction before the Senate held confirmation hearings.

In 2009, McConnell insisted to Senate Majority Leader Harry Reid that Republican cooperation in the confirmation process would be contingent upon nominees clearing background checks, obtaining OGE approval, providing financial disclosure, and cooperating with committee ranking members (the minority’s counterpart to committee chairmen). These standards weren’t particularly controversial at the time, and were part of the reason Obama’s designated secretary of Health and Human Services, Tom Daschle, ultimately withdrew his own nomination over what, by the standards Trump and his cabinet are setting, was a picayune failure to report gifts and consulting fees as income.

All of that is out the window now that Obama will no longer be president. The OGE has written to Trump aides expressing concern that the office has “lost contact with the Trump-Pence transition since the election,” and McConnell has decided to assist Trump in his determination to circumvent basic ethics requirement. “[T]he announced hearing schedule for several nominees who have not completed the ethics review process is of great concern to me,” OGE director Walter Shaub wrote in response to an inquiry from Senate Democratic leaders, “I am not aware of any occasion in the four decades since OGE was established when the Senate held a confirmation hearing before the nominee had completed the ethics review process.”

In itself, the Trump-McConnell ethics end run does nothing to prevent Senate Democrats and their researchers from digging into the backgrounds of high-profile nominees—indeed, the absence of serious vetting by Trump himself makes it much likelier that Democrats will uncover serious liabilities. But rather than address that risk by drawing the process out long enough for ethics officers to do their jobs, McConnell and his chairmen have conspired to hold so many confirmation hearings simultaneously that they overwhelm senators’ ability to conduct oversight, and the public’s ability to process damning revelations about any particular nominee.

“By scheduling six confirmation hearings for [Wednesday], the Senate GOP is working to prevent any one Donald Trump nominee from dominating a news cycle,” The Washington Post reported last week. “The gambit is very likely to succeed.”

As egregious as these tactics are, they carry real downside risks for Republicans, who will likely end up rubber-stamping cabinet officials who turn out to be corrupt or incompetent or both, and ultimately damage the administration and the party.

Their legislative antics, by contrast, are nakedly self-serving.

Since 2010, Republicans have accused Democrats of using secrecy and extraordinary procedural maneuvers to pass the Affordable Care Act under a dark cloak. They’ve leaned heavily on the talking point that Democrats “shoved” Obamacare “down our throats,” using the budget reconciliation process (which is immune from filibuster) to “restructur[e] one-sixth of the economy.”

All along, liberals have pointed out that the precise opposite is true. Obamacare was likely the most scrutinized major legislation in U.S. history—the product of thousands of man hours of committee work, crafted with the expectation that a neutral Congressional Budget Office would analyze its effect on deficits and health spending growth. It took over a year to complete, and while the reconciliation process was a key part of the bargain among Democrats to enact the law, they passed health care reform itself over a GOP filibuster with 60 votes. Reconciliation merely allowed Democrats to pass modest amendments to their new health care reforms with simple majorities.

Seven years later we learn that GOP protestations were subconscious forms of projection. Where Democrats waited 14 months to invoke the reconciliation process, and even then used it sparingly, Republicans are laying groundwork to use reconciliation to repeal most of the health care law in the first few weeks of Trump’s presidency—months or years before their plan to replace Obamacare has been introduced publicly. They have taken preemptive steps to limit the impact Congressional Budget Office analyses will have on the debate over repealing Obamacare, and are proceeding with their “repeal and delay” strategy over the objections not just of Democrats but of several Republicans, too.

Seven years is an eternity for political memory, though, which is why McConnell’s Supreme Court strategy is such valuable evidence of the GOP’s dual standard for the importance of Congressional norms. After denying Obama’s Supreme Court nominee Merrick Garland a perfunctory hearing before the Judiciary Committee, let alone an up-or-down vote, McConnell now says the public “simply will not tolerate” Supreme Court obstruction.

Conservatives will object to this depiction of GOP cynicism by citing brazen steps Democrats took over the past several years in defiance of precedent. The canonical episode that supposedly proves both parties are responsible for the degradation of governing norms is Reid’s 2013 decision to abolish the filibuster for all non-Supreme Court presidential nominees.

But a key distinction between Democratic and Republican brinksmanship lies in precipitating events.

Democrats did indeed change the rules of the Senate, but they did not do so lightly—not to confirm a particularly egregious Obama nominee over GOP objections, for instance, or to spike the ethics process. Reid abolished the filibuster in response to McConnell’s vow to filibuster key Obama nominees irrespective of their qualifications, in order to hobble government agencies with liberal missions (the National Labor Relations Board, the Consumer Financial Protection Bureau) and to prevent Obama from flipping ideological balances on federal appeals courts.

In that episode, one breach of norms begat another; today, norms are falling because Republicans find adhering to them inconvenient. Democrats will revisit norms when GOP resistance tactics put old norms and basic governing in tension. Each of the above Republican tactics, by contrast, was undertaken out of sheer expediency. Their bar for knocking down norms is if those norms create minor obstacles to the maximal exercise of power.