Rules for Rascals

Why Republicans are better at fomenting outrage, real and pretend, than Democrats are.

Rep. Paul Ryan. Click image to expand.
Rep. Paul Ryan

The phrase of the day is “power grab.” This is not a reference to the prying of the speaker’s gavel away from Nancy Pelosi by John Boehner. There’s no outrage there. The “power grabs” are much more sinister, and they’re coming from the Republicans in the House and the Democrats in the Senate. If you doubt this, just ask the House Democrats or the Senate Republicans.

Start with Senate Minority Leader Mitch McConnell. In an op-ed for the Washington Post, McConnell pushed back against a threatened “power grab” by Democrats who want to make it tougher to filibuster bills in the new Senate. “Now that they’ve lost an election,” wrote McConnell, “they’ve decided to change the rules rather than change their behavior.” All they want are “partisan rule changes aimed at empowering the majority at the expense of the minority.”

Continue with Chris Van Hollen, the Democrats’ new ranking member on the House budget committee. He’s been yelling to anyone who’ll listen about how the incoming Republicans will pass rules that keep the cost of health care reform repeal off the books, and set the government’s spending level—for a couple of months—to meet the skinflint standards of Budget Committee Chairman Paul Ryan.

“What they’ve done now is invest an incredible amount of power in one person to set the limit,” said Van Hollen to reporters Tuesday. “They’re going to have to answer for that—it’s totally inconsistent with their claim that they were going to be transparent.” Even worse, Van Hollen more or less had to concede that Democrats wouldn’t be able to fight this. They would rely on the media to shame Republicans.

“We’ll have a rules package that certainly won’t include this,” he shrugged. “They’ll have a majority. They’ve talked a lot about the importance of transparency, and we agree with them, obviously, on preserving the integrity of the process … which is why it’s alarming to see them take an about-face so quickly.”

Can’t we start a new session of Congress anymore without this level of sadness? No, we can’t. Obscure Capitol rule-making played a bigger role in the last election than anyone expected. Tea Party activists, convinced that members of Congress were passing bills without even trying to read them, grew outraged by things like the “self-executing rule,” under which the health care bill could have been “deemed passed.” (A typical conservative headline of the time: “Deem and pass or Demon Pass?”) Liberals determined that their agenda was being passed in the House and ground to dust in the Senate, so they asked for—and got—commitments for filibuster reform in 2011.

Were all of the angry people right? Mostly, yes. They all identified the reasons that they were losing. But when it comes to demonizing the way Congress works and building public outrage about how the rules work against you, Republicans have it all over the Democrats. They deploy the same argument against giving a Supreme Court seat to Elena Kagan or creating a mandate to buy health care: If the Founders wouldn’t have approved of it, neither do we. This was how Virginia Attorney General Ken Cuccinelli and then-Florida Attorney General Bill McCollum were able to move so quickly to threaten lawsuits if the health care bill was “deemed passed.” It was also why they moved just as quickly to sue when the bill passed the House through normal means.

Democrats aren’t as consistent about this. It’s easy for Republicans to dredge up video of the other party pleading for the life of the filibuster in 2005, when Republicans wanted to prohibit its use on judicial nominees, because, well, Democrats used to plead for the life of the filibuster. Republicans aren’t won over now when Democrats suggest that, in exchange for filibuster reform, they’ll stop “filling the tree” and filing so many amendments that Republicans can’t get votes on enough of their own. They see the argument changing depending on how much power they have, and they see it being sold pretty poorly.

This isn’t a problem for House Republicans. Democrats are trying their damnedest to find hypocrisy in the new GOP. On Tuesday, incoming Majority Leader Eric Cantor suggested that disallowing amendments on the health care repeal bill would be all right, even though Republicans decried the restrictive amendment process under Democrats, because health care repeal had “been litigated in the election.” Phil Kerpen, the national policy director of Americans for Prosperity, had rallied conservatives against “deem and pass,” the lame duck session, and numerous other outrages in 2010. He didn’t see a problem with the Ryan budget trick that aggrieved Van Hollen.

“It’s a unique situation because the 111th Congress failed to pass a single appropriations bill and we’re already into the next budget cycle,” said Kerpen. “This is cleanup work so we can turn the page, and I believe the new GOP majority will make good on its promise to emphasize regular order and run the House in a more open fashion.”

The base is OK with what Republicans are doing in the House, which is one reason why they will succeed. Conservatives are still more organized to save the filibuster than liberals are organized to stop it. On Tuesday, they suggested that Democrats would give up on filibuster reform because they see the possibility of losing the Senate in 2012 and losing their ability to stop the GOP from repealing their achievements.

Of course, being good at something isn’t the same as being right about it. According to Krissah Thompson, the key organizers at Americans for Prosperity and FreedomWorks have convinced themselves that the health care repeal vote happening in the House next week won’t be symbolic—it will be the first part of “a one-two punch” to repeal. This is obviously wrong, because there’s no math that gets the repeal caucus to 60 Senate votes to break a filibuster.

What would put Republicans in a better position? Well, filibuster reform would. If New Mexico Democrat Tom Udall’s version of reform succeeded, the 60-vote threshold wouldn’t matter as much. Democrats could be ground down, over time, in successive votes. In 2013, if everything broke the GOP’s way, repeal could happen with 51 votes in the Senate.

It won’t happen with the filibuster staggering along as it is now, though. All of the power grabs of 2011, and the balance of power won’t shift at all.

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