How Senate Republicans can break Democratic obstruction
(Editor's Note: This first appeared in the Washington Examiner on June 7, 2017.)
One big reason why the Senate is gridlocked today is that Republicans have yet to put in the kind of effort required to break the Democrats' obstruction.
Republicans should want the Senate to work. After all, the party retained its majority in the chamber after last November's elections and the GOP also controls the House of Representatives and the presidency for only the fourth time since the end of World War II.
Given this fact, it would be reasonable to assume that the Senate would be raring to go. Instead, the institution looks to be barely moving.
Take nominations. Republicans were giddy about the prospect of controlling the executive branch for the first time after eight long years in the opposition. In a Trump administration, the party has a greater say in who would be nominated and confirmed for important positions in the departments and agencies that write regulations and implement the law.
And Republicans now frequently complain that the Democrats are unnecessarily obstructing virtually every nomination that the president has sent to the Senate.
To be fair, this obstruction is a real problem. According to the Pew Research Center, there have been more cloture votes on Trump's nominees during the first five months of his administration than during the entire two-year period in all but one Congress since 1949, when the Senate first ruled that the cloture process could be used to end a filibuster of a presidential nomination.
Yet, while unprecedented, such obstruction is no excuse for the Senate's lethargic pace. This is because Republicans have yet to use the parliamentary tactics at their disposal to increase the costs of continued obstruction for the Democratic rank-and-file.
The GOP can use these tactics to exhaust individual Democrats, thereby undermining the minority's ability to obstruct more broadly. In his treatise, "On War," the 19th-century military theorist Carl von Clausewitz observed, "If the enemy is to be coerced, you must put him in a situation that is even more unpleasant than the sacrifice you call on him to make."
Republicans should channel their inner Clausewitz by managing the Senate in such a way that clearly signals to Democrats that the costs of their continuing obstruction will exceed any benefits they hope to gain. One way that the GOP could do this is by keeping the Senate in session overnight, on the weekends, and during long holiday recesses whenever a Democratic senator insists on using all time permitted under the rules to delay a confirmation vote.
Actually, requiring obstructionists to obstruct increases the costs of such behavior for senators. And higher costs will eventually result in less obstruction.
Consider this: Not many members are willing to speak on the Senate floor for an extended period late at night or on the weekend, much less during the depths of the August recess, simply to delay an inevitable confirmation vote. There are even fewer members who are willing to do so day after day, week after week, on nominee after nominee.
As a result, routine obstruction will decline. Senators will reserve their procedural prerogatives — and energy — for only the most controversial nominees.
Incidentally, this dynamic reflects how the Senate worked for much of its history. Prior to the creation of the cloture rule in 1917, there was no way to end a filibuster other than through sheer exhaustion. That is, obstruction ended only when the majority clearly signaled to the minority that its resolve to prevail in the contest was greater.
This strategy still works today.
For example, Senator Chris Murphy, D-Conn., was asked in a recent interview if it was realistic to expect Democrats to continue their obstruction of Trump's cabinet nominees after Republicans kept the Senate in an around-the-clock session for just two days. Murphy answered, "I'm exhausted. And so it is hard to understand how this pace continues."
Admittedly, embracing such an aggressive approach does not guarantee success for the GOP. But nothing is certain in politics. Legislative bargaining is, at its core, a battle of wills. In such a contest, the minority may emerge victorious because the resolve of its members was greater than that of the majority's. But the majority won't know if this is the case unless it first tries to defeat the minority.
The Senate is gridlocked today because Republicans assume Democrats' resolve to prevail is greater than theirs without first requiring individual senators to expend the effort to obstruct. Such an assumption gives the minority more power than may be warranted.
Fortunately, the Senate doesn't have to work this way. All Republicans must do to change course is put in the effort required to signal that they are serious about governing. If the GOP wants to triumph in the legislative battles to come, it must first show up to the fight.