More on the “Stop Hitting Yourself” Theory of Governance

Josh Blackman raises the new theory that Democrats should pay the price for Republican obstructionism to a new level:

I trace much of the intractable gridlock in Washington, D.C. to this very moment in 2009 when the ACA was passed on a 60-line vote. In much the same way that Kim Kardashian “broke the internet,” I think Harry Reid ramming the ACA through “broke the Senate.” This is to say nothing of his later decision to trigger the nuclear option, and eliminate the filibuster altogether for judicial nominees other than the Supreme Court. The intransigent Republicans take virtually all of the blame for the gridlock over the last few years, but much of it should fall at the feet of Reid.

This has the same problem as all versions of the theory: namely, the idea that there’s something presumptively illegitimate about passing legislation with “only” a 60% or 59% majority in the Senate is absolutely absurd. I actually wouldn’t bet that a conference committee would have modified the currently contested language of the ACA — everyone understood perfectly well that subsidies would be available on the federally established exchanges at the time, after all — but whether this is true or not the fact that a minority of Republicans in the Senate wouldn’t allow a vote on a bill that went through a conference committee cannot be blamed in any way on the Democrats and is a feeble justification indeed for willfully misreading the law.

Some additional notes:

• How many Senate votes are necessary before Democrats are actually permitted to govern after winning an election?  65?  70? 80?
• I note, again, that Mitch McConnell had announced ex ante that he wanted to deny Republican support for anything.  So, in other words, the only way that the Democrats could have avoided “breaking the Senate” would be…to do nothing.  I can’t imagine why Reid did not take this deal.
• I’m curious why a bill that passed with 60 votes is cited as the one that “broke the Senate.”  Why not Bush’s second round of upper-class tax cuts, which passed the Senate with 50 votes + the vice president?  What about Medicare Part D, which got 54 votes in the Senate after extraordinary procedures were necessary for it to squeak by a 3-vote margin in the House?  Is it only Democrats who aren’t permitted to govern without at least a 61-seat supermajority in the Senate?
• The “nuclear option” argument is, if anything, even worse.  Again, it’s worth recalling the context.  Republicans did not merely filibuster individual nominees that they considered unacceptable.  They were simply blocking en masse anyone that Obama nominated to the D.C. Circuit once he was in the position to make Democratic nominees a majority.  Which led to rules changes in which a majority of the Senate can confirm presidential nominees to the federal courts.  Which I’m supposed to be upset about…why is that again exactly?
• It’s also worth noting that the “nuclear option” was not a Democratic innovation.  It would have been invoked during the Bush administration, except that Democrats made a deal in which they allowed multiple judges including Janice Rogers Brown to be confirmed to the federal bench in exchange for utterly worthless promises about future behavior.  If Republicans had agreed to confirm Pamela Karlan, Kimberlé Crenshaw, Reva Siegel, and Mark Tushnet to the D.C. Circuit I’m very confident that the filibuster rule would not have been modified. 

In conclusion, I would have to say that I am not persuaded that Democrats are obligated not to try to pass any laws to preserve the comity of the Senate or to ensure that the statutes they do pass will be misread by the courts as to defeat their clear purpose.