Senate Democracy Is Dead (or At Least Seriously Wounded)

The law, lawyers, and the court.
Jan. 30 2013 3:33 PM

Senate Democracy Is Dead

Or at least seriously wounded by the failure of filibuster reform and the court ruling against the president’s recess appointments.

Senate Minority Leader Mitch McConnell speaks to the media while flanked by Sen. John Barrasso (left), Senate Minority Whip John Cornyn (second from left), and Sen. John Thune after the weekly Senate Republican policy luncheon at the U.S. Capitol Jan. 29, 2013.
Senate Minority Leader Mitch McConnell speaks to the media while flanked by Sen. John Barrasso (left), Senate Minority Whip John Cornyn (second from left), and Sen. John Thune after the weekly Senate Republican policy luncheon at the U.S. Capitol Jan. 29, 2013.

Photo by Mark Wilson/Getty Images

Senate democracy—not just Senate Democrats—suffered two significant setbacks last week. One wound was partly self-inflicted. The other was mischief worked by judges. President Obama’s wiliest and most subtle adversary—Senate Minority Leader Mitch McConnell—has just won big, twice.

First, filibuster reform fizzled. Though Democrats have 55 Senate seats, nothing important can pass without 60 votes, so McConnell retains enormous power to stop whatever Majority Leader Harry Reid and the Dems might favor. Meanwhile, a panel of Republican-appointed judges on the U.S. Court of Appeals for the D.C. Circuit ruled that President Obama cannot overcome Senate filibusters of his nominees by making executive branch appointments during Senate recesses that take place midsession. The judges made this ruling in the name of Senate rights, even though neither the Senate as a whole nor the Senate’s Democrat majority was complaining about Obama’s recess appointments. Only McConnell and his fellow Republican senators were involved in the lawsuit (as informal friends of the court), yet the judges in effect recognized them—the minority!—as the Senate’s proper spokesmen. And if that weren’t bad enough, the judges proceeded to overturn well-settled Senate practices governing the Senate’s own internal procedures—practices that had been supported for decades and on some specifics for centuries by senators (and presidents) of both parties.

Much of the blame for this sad situation belongs to Reid and the Senate Dems. On the filibuster reform question, nothing has prevented the Democrats, legally speaking, from exercising their constitutional right (nicknamed the “nuclear option”) to insist, by a simple majority vote, that simple majorities should rule in the Senate—as provided for by the Constitution itself and strongly supported by early Senate practice. (Before the Civil War, no notable measure ever failed when it had the support of a determined Senate majority. Senate minorities got to speak, but Senate majorities got to vote. California’s admission to the Union in 1850, giving free states a razor-slim edge in the Senate over slave states, was a potential game-changer precisely because simple majority-rule was the name of game.)

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On the recess appointment question, Reid and the Senate Dems also blew it. In January 2012, senators left town for several weeks but held periodic pro-forma proceedings lasting a few minutes apiece, with almost no senators present. Obama treated these proceedings as shams; in his view, the Senate was in recess, and during Senate recesses, the Constitution allows him to unilaterally and temporarily fill vacant executive branch positions via recess appointments. Like Wagner’s music, this Obama tactic was not as bad as it sounds. Reid and the Democrats in the Senate were being held hostage (literally) by House Leader John Boehner, who would not agree to let everyone go home (and typically, both houses must agree to these adjournments) unless Reid agreed to the pro-forma charades.

So Obama’s seemingly aggressive use of the recess-appointment power wasn’t so aggressive after all. His appointments probably had the tacit consent of Reid and the Democrats. They would have voted to confirm the folks Obama chose—they just didn’t have the 60 votes needed to bring these folks to the floor because of McConnell-orchestrated Republican filibustering. In effect, Obama’s tactic, with Reid’s likely support, restored Senate majority rule for executive branch appointments during midsession recesses. Last January, Tim Noah and I dubbed this strategy a “tactical nuke”—a miniature version of the more sweeping “nuclear option” of filibuster reform across the board.

But Reid and the Democrats failed to defend this strategy in a transparent fashion. At the time, Noah and I urged Reid and the Dems to go public—to sign a letter to certify that 51 senators in fact supported Obama’s January appointments, and to thereby make clear that the president was not running roughshod over his former colleagues but actually helping the Senate accomplish what a majority of senators in fact favored.

And when a predicable lawsuit materialized, challenging the legality of Obama’s recess appointees to a federal labor board, Reid and the Dems failed yet again. They should have filed a brief making clear that they considered themselves functionally in recess last January.  But again they did what Senate Dems seem altogether too comfortable doing: nothing.

Even without such a brief, a properly modest judicial panel would have hesitated to insert itself into an ongoing and long-standing conversation between presidents and senators about the give and take of their relationship on appointment issues. A key 1997 Supreme Court case, Byrd v. Raines, says that only a majority of senators have proper standing in court to complain of presidential actions violating the rights of the Senate. Why should a private party—in this case, a bottling company being regulated by the National Labor Relations Board, which has three members appointed by Obama in January 2012—have standing to raise the rights of the Senate itself?

The Constitution gives each chamber of Congress broad authority to determine its own rules of proceeding. But the D.C. Circuit judges in this case treated the Senate as if it were a collection of law clerks, whose folkways could be set aside at will. According to the court, even if no pro-forma meetings had been held last January, the Obama appointments were still illegal. Why? Because the Senate did not bother to call the day before the vacation “Session X” and the day after the vacation “Session Y.” Never mind that for decades the Senate has treated certain long midsession vacations as proper recesses! Never mind that these understandings have been negotiated with presidents of both parties over many years and have been endorsed by framework legislation that also reflects the concurrence of the House of Representatives. We, the judges, will decide how the Senate must conduct its own business and define its own calendar.

In support of this immodest intrusion, the judges cited the landmark 1987 Supreme Court decision INS v. Chadha, which overturned a “legislative veto” scheme that also had been a congressional fixture for decades. But as I explain in my new book, America’s Unwritten Constitution, Chadha (which I applaud) struck down a system that every single modern president who had confronted the legislative veto (from Woodrow Wilson through Ronald Regan) had explicitly condemned—a key fact highlighted by the Chadha court. By contrast, all the relevant actors—the Senate and the president that together make government appointments, and the House that helps fund these officers—have embraced the midsession recess.

The judges in last week’s recess appointments case did not even stop there. In a wholly unnecessary aside, two out of three of them went on to say that the president can only fill vacancies during a recess (meaning a recess between sessions) if the vacancy arose during the recess itself. If a vacancy opened, say, five hours before the end of one session, then the office must remain vacant until the next session begins. In the early republic, a gap between sessions often lasted for months. So it is hardly surprising that this ultra-strict view of the recess power was rejected centuries ago. In the 1820s, America’s attorney general expressly rejected this dubious reading of the Constitution, and since then all three branches of the federal government and both houses of Congress have followed suit to fill and finance a vast multitude of vacant offices.

So blame Harry Reid and the Senate Dems for not doing enough, but don’t give the Republican-appointed judges who ruled against the president a pass, either. The proper constitutional response to a Senate that does too little is not a court that does too much.

Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

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