In his extended denunciation of the nuclear option in April 2005, then-senator Joe Biden warned that “once the Senate starts changing the rules outside of its own rules, which is what the nuclear option does, there is nothing to stop a temporary majority from doing so whenever a particular rule would pose an obstacle.” Biden grasped something that is sometimes unfashionable to point out today: The adoption of certain procedural principles has consequences. Nuking regular order in the Senate would have vast implications for the body as a whole, permanently changing its character and removing one of the guardrails that limit the power of narrow partisan majorities.
With the Build Back Better plan seemingly shelved until some point in 2022, Senate Democrats are, yet again, in negotiations about some rules change that could be used to push through an election-reform bill. Majority leader Chuck Schumer reportedly met this morning with Joe Manchin, Tim Kaine, Angus King, and Jon Tester to discuss the idea of rules changes. Many progressive activists are now pushing for a special “carve-out” on the filibuster for an elections bill, and many in the press have for some reason presented a carve-out as a limited or moderate measure. But, as Joe Manchin himself observed earlier this year, going nuclear to impose one carve-out would soon lead to one carve-out after another.
Elizabeth Warren’s recent endorsement of court-packing illustrates what could be at stake in the removal of regular order — not only the integrity of the Senate but also the conditions of the other branches of government. Popular arguments for court-packing echo those for nuking the filibuster: that the current constitutional arrangement is somehow “undemocratic,” that Republicans are an existential threat to the republic, and so forth.
Unsurprisingly, many of the leading proponents of nuking the filibuster also support court-packing. Once you start unilaterally removing obstacles to the raw exercise of partisan power, it’s hard to stop.
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