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Democrats nuked the ratchet

Democrats nuked the ratchet

The inexorable march no longer is inexorable.

The seemingly inexorable march towards economic socialism and political statism has been accomplished through legislative and judicial ratchets which, once established, were all but impossible to reverse in part because the filibuster helped lock in the agenda and those supporting the agenda.

Because of the ratchet, the nation moved only in one direction: Towards redistribution of wealth, and bigger government.

Because of the ratchet, there was little or no hope of fundamental reversals.

Not anymore.

When Democrats — the embodiment of redistribution and statism — exercised the Nuclear Option yesterday, they blew up the ratchet. The filibuster is dead for all purposes, even if superficially only as to non-Supreme Court nomninees. No one will respect the filibuster for Supreme Court nominees or important legislation — the Senate can’t be half pregnant.

Ezra Klein gives several reasons whey the filibuster effectively is dead for all purposes, and why that may be a good thing for Republicans in the near term, Nine reasons the filibuster change is a huge deal:

8. There’s a lot of upside for Republicans in how this went down. It came at a time when Republicans control the House and are likely to do so for the duration of President Obama’s second term, so the weakening of the filibuster will have no effect on the legislation Democrats can pass. The electoral map, the demographics of midterm elections, and the political problems bedeviling Democrats make it very likely that Mitch McConnell will be majority leader come 2015 and then he will be able to take advantage of a weakened filibuster. And, finally, if and when Republicans recapture the White House and decide to do away with the filibuster altogether, Democrats won’t have much of an argument when they try to stop them….

The inexorable march no longer is inexorable.

Decades of negative and destructive policies can be reversed with a bare majority. Obamacare can be repealed with a bare majority. True Conservative Judges will not be banished due to a filibuster threat.

Yes, it’s true that the absence of a filibuster could accelerate the destructive policies. That fear is justified, particularly as to the judiciary. But face it, we were headed there anyway unless drastic action was taken.

That drastic action took place yesterday. By Democrats.

Now at least we have a chance to achieve previously unimaginable progress in a single presidential term if we also have bare majorities in Congress and a President with the willpower. It will take only one such term.

The ratchet has been broken. And opportunity created, even if dependent upon future electoral success.

It’s now up to us to seize the opportunity.


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Now all we need is sufficient time to elect about 200 more conservatives to red and purple districts, and for the current crop of statist republicans and the political apparatus to support them to die out and retire- but mostly die out.

And hope like hell we get precious few Rubio style turncoats.

Why, iwith 50 or 60 years of concerted effort, we may be able to significantly slow the growth of the federal government!


You REALLY need to hear Hateful Harry Reid on the whole issue of the sacred filibuster.

I mean, you REALLLLY neeeeeeeddd to hear this.

    moonstone716 in reply to Ragspierre. | November 22, 2013 at 10:12 am

    And in 2016, if the Republicans are in power and take full advantage of this, Reid will spew that rant over and over again and the media will cover it as appropriate outrage by the Dems with no hint of the history or his hypocrisy.

      You’re assuming that there will be any vacancies by the time the Republicans reclaim the Senate. Also, partisanship in selecting openly ideological judges (by both parties)will deligitimize the court system. That is not cause for celebration. Reread your history of the lead up to the American Revolution. What exercised John Admas (an imortant figure in the Continental Congress) was the disrespect for the law by the British.

problems bedeviling Democrats make it very likely that Mitch McConnell will be majority leader come 2015..

er, no. Bevin is going to kick his ass in the primary.


CONGRESS has the power to reform the Federal judiciary.

The NEXT Congress (the conservative one) should set term limits all up and down, and make judges removable for reasons other than impeachable offenses (like being nutz, for instance).

    Karen Sacandy in reply to Ragspierre. | November 22, 2013 at 6:26 pm

    AND the power to determine jurisdiction of federal courts, meaning, they can REMOVE the power to hear violation of church-state claims and REMOVE ability to award attorneys’ fees for “winner” in such cases.

    The MONEY is feeding these attacks on Christmas. When they bludgeon a locality through the courts, the locality pays the Culture-Killers’ attorneys’ fees. They eat that stuff UP!

Interesting take Prof., I hope your optimism is rewarded. But, my fear is the repubs will not confirm a single judge, nor enact a single piece of legislation if they gain control of the Senate and WH.

The repubs will have, at most, a two or three seat majority. With senators such as McCain, Collins, Ayotte, and others, along with Uncle Mitchy, they will not have the fortitude to vote for the nuclear option. And a vote will be required because Reid will re-institute the filibuster rules during the lame duck session. What have they got lose, except their reputations for looking like hypocrites?

I can hear it now, McCain and the Gang of 48:

The dems promise not filibuster nominees unless they have a really good reason or really don’t like their haircut, and since they have shown to be very cooperative over the last week of the new session, I have no reason to doubt them. I personally must stay principled, and not vote for this because I voted against last session.

You really think McCain would vote to expand the simple majority rule to include legislation. NO WAY!

    Karen Sacandy in reply to Jazzizhep. | November 22, 2013 at 6:27 pm

    Sen. Cruz has made a point with his effort to get Obama to compromise on Obamacare. Obama has shown was a worthless executive he is.

    McCain will pretend to see the light, if Cruz et al. continue to be forceful.

    Rubio has seen the light, too late for his ambition, but has seen the light. More Tea Partiers, the more they will see the light.

Will, of course, has a very powerful point about INTENSITY and the wisdom of the filibuster.

Another way to put Prof. Jacobson’s point is…

all the safeties have been removed. For good or ill.

The Dems see this as their best hope to seize the entire government for the indefinite future, and are going for broke. I give them a real chance, though if they do not pull it off, the backlash is likely to be severe and long term.

legacyrepublican | November 22, 2013 at 8:17 am

In another sense, if the Republicans take back control, it does mean one other superb thing. Harvard and Yale have lost their lock on the judiciary.

For the last 20 plus years it seems, no one, unless they were from Yale or Harvard law school, has ascended to the highest court in the land.

This is shameful. No one from Stanford, Cornell, SMU, Northeastern, etc, can hope to become a supreme court justice one day because of the incestuous behavior of the senate’s judiciary choices.

    Karen Sacandy in reply to legacyrepublican. | November 22, 2013 at 6:30 pm

    Hey, I take exception to that. U.G.A. is a good law school. Emory University has a good law school.

    I take exception that only those born with a silver spoon, or able to leverage affirmative action, are appropriate nominees to the Supreme Court. How much education did most of our presidents/justices, actually have? Seriously.

Since this rule was changed illegally, isn’t it unconstitutional? Can’t this be remedied in SC?
Also, Sen. sessions pointed out that this was done primarily to pack the judiciary of DC, and that there really is no need gor the Three vacancies yo be be filled. Dunce the House had the power of the purse, can’t they just cut off the funding gor these three unneeded judges?

    Jazzizhep in reply to vrajavala. | November 22, 2013 at 8:32 am

    Couple of things vrajavala, the rules changes were not illegal, regardless if what you might hear from some (you will likely not hear that on LI). It is explicit in the constitution that the branches of congress set their own rules.

    Congress, not just the House, has the power of the budget. Considering the Senate hasn’t passed a budget in years, why would they start now?

    The only nucler option I would allow is the the one at the end of a Titan rocket headed for CA, NY, and NV. A little exrteme I know, but if it saves just one child, we gotta try.

      They can change the rules, sure. They can set silly rules, sure. But can they change the rules in this way? An appeal of a ruling is there to fine-tune interpretations of rules, not to say black = white. What they did was get the chair to state that the Rule said what it plainly said, and then they appealed that decision and won. Rule changes have a different process which has certain requiements:

      For example:

      Rule V.1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof.

      Rule XXII.2

      Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, “Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

      Neither of these rules was followed. And clearly they could not challenge the 2/3rds needed to change the rules, being as how it is specifically called out. So they challenged the slightly less exact phrase “any measure, motion, other matter pending before the Senate” and asserted that it did not actually mean “any”.

      Why is this clearly OK? The Senate gets to set its rules, but doesn’t it have to follow them?

    snopercod in reply to vrajavala. | November 22, 2013 at 9:01 am

    In 1892, the U.S. Supreme Court ruled in United States v. Ballin that both houses of Congress are parliamentary bodies, implying that they may make procedural rules by majority vote.

      Ragspierre in reply to snopercod. | November 22, 2013 at 9:17 am

      The filibuster…like Topsy…just growed that way.

      It is a pure creation (!?) of Senate rules, and has been changed many times during the Republic.

      There is nothing “Constitutional” or legal about it. It HAS proven to be a traditionally important check to pure majority rule. Sort of like a legislative Bill Of Rights in that respect.

      Yes, but the Senate, when reducing the cloture threshold to 3/5ths left the rules cloture number at 2/3rds. Clearly this was to prevent EXACTLY what happened yesterday. Instead of changing the rule, they set an interpretive precedent that the rule should be read as changed. If you can interpret a rule willy-nilly, what is the point of having rules?

I believe that they did not actually change the rule. Rather they voted to “not enforce” the rule in these circumstances. While the implications of the change seem profound to me, the broader concern lies with the prevailing practice of just not following/enforcing laws and rules. If my understanding is correct it simply further illustrates that we no longer have a government, we have some form of informal tyranny.


Since this rule was changed illegally, isn’t it unconstitutional? Can’t this be remedied in SC?
Also, Sen. Sessions pointed out that this was done primarily to pack the judiciary of DC, and that there really is no need for the three vacancies to be be filled. Since the House has the power of the purse, can’t they just cut off the funding for these three unneeded judges?

I mean, there is a case going to SC that questions origination of the ACA “tax” in the Senate, which has no power to levy taxes. So why is the illegal change of Senate rules any different?

    Karen Sacandy in reply to vrajavala. | November 22, 2013 at 6:34 pm

    No comment on the illegality of rule change. They can make their own rules.

    About funding: same as the shut down. The media takes one side and it doesn’t matter who’s right. The House refuses to fund, then all the ignoramouses start shouting about GOP can’t vote. Well, we can count, but the winner in a game of chicken, is who will stand there the longest. If you chicken out, you LOSE. Gotta stick with it. The GOP doesn’t have what it takes, RIGHT NOW.

    Like Reid told that D.C. Mayor, “Be quiet, I’m trying to help you.”

Connivin Caniff | November 22, 2013 at 8:35 am

A nuclear attack justifies a nuclear response. When the Republicans gain a majority, they should get creative as to nuking ALL minority perks. Allocate office space accordingly: Harry Reid should be allocated a cubicle adjacent to the Men’s Room in the gym (or in the Men’s Room). And of course, there should be no debate about anything and not the least concern about the yelping of the D-Rats or their commie media friends. If somebody wants to play rough, you play rougher.

No. This Senate rule was written by Thomas Jefferson, and Reid changed a senate rule by a simple majority, when the rule is that to change a rule, you need a 2/3 majority vote.

So, technically it’s not really changed.
It’s like ratifying a treaty, which requires 2/3 majority vote.

I think they’re just trying to change the subject. But, as Sen. McConnell states, this bullying just reminds the American Public of how the Democrats rammed Obamascare down our throats.

Bitterlyclinging | November 22, 2013 at 8:43 am

Harry Reid and the Senate Democratic Majority were obviously not afraid of having suppository shaped bills allowing drilling in ANWAR or outlawing abortion neatly bound and wrapped with razor wire inserted into their rectums anytime soon after the Senate and the Whitehouse eventually change hands politically. Perhaps it was because Comrade Barack assured them that both the House and the Senate would be obsolete by the time 2016 arrived and he was planning on staking permanent claim to the title to the property located on 1600 Pennsylvania Ave. Or at least for the next thirty years or so.
November 22, 1963 was an inflection point in American History.
November 21, 2013 was an equally large inflection point in American History as well. We moved incrementally one step closer to the shredding of the Constitution, we moved one step closer to the relighting of the ovens at Auschwitz, the in secret Obamacare Death Panel regs are due out next year, and we moved one step closer to the next Civil War.

“One man with a rifle can change history” Lee Harvey Oswald.

Pout-faced Dinghy Harry has become very jealous of one Senator Ted Cruz and has therefore created another axis of evil with a majority of one Senate Deemocrat.

Yes. The branches set their own rules, but breaking a rule to Change a rule is still illegal. And over 200 years of precedence.
Thomas Jefferson.

    platypus in reply to vrajavala. | November 22, 2013 at 12:30 pm

    Please stop embarrassing yourself. “Illegal” means there is a higher authority. There is no law that controls the Congress. Only the constitution controls the Congress and even then only if it is enforced using its own mechanisms. Legal or illegal is properly never part of the discussion.

      Voyager in reply to platypus. | November 22, 2013 at 9:52 pm

      What I find myself wondering is, if the Senate can change their rules, in contradiction of their rules, what can they not do?


MR. ONSLOW, the ablest among the Speakers of the House of Commons, used to say, ‘it was a maxim he had often heard, when he was a young man, from old and experienced members, that nothing tended more to throw power into the hands of administration and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding: that these forms, as instituted by our ancestors, operated as a check and controul on the actions of the majority; and that they were in many instances, a shelter and protection to the minority, against the attempts of power.’ So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding which have been adopted as they were found necessary from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities. 2 Hats. 171, 172.”
Thomas Jefferson

NC Mountain Girl | November 22, 2013 at 9:21 am

This may also put an end to a lot of posturing by Senators from both parties. Now they can’t support a controversial nominee for sake of party unity knowing he or she can never be confirmed because of a filibuster. Now if they support a nominee, it will count and they can be held accountable in the next election. This will further complicate the lives of red state Democrats/

>>”It’s now up to us to seize the opportunity.”

Then it’s too bad for us. Because “seize” and “opportunity” are alien terms in and of themselves to Republicans; combined in one sentence, beyond the scope of comprehension or possibility.

    rinardman in reply to raven. | November 22, 2013 at 9:52 am

    When opportunity knocks…Republicans wait for the doorbell.

    Midwest Rhino in reply to raven. | November 22, 2013 at 10:47 am

    Guys like McCain might “seize the opportunity” to demand a higher price for their (sellout) vote, if Republicans ever take back the Senate. The McCain types are on board with bigger government, not with the tea party and the people.

    But the broken ratchet still seems helpful, if we survive the next few years.

The nominations they’re talking about are lifetime appointments. So, even if the Senators want to duck responsibility. The liberal freak judge is still thre.

    platypus in reply to vrajavala. | November 22, 2013 at 12:33 pm

    All federal courts are statutory courts, and the judges of such courts serve at the pleasure of Congress (and of course the veto).

southcentralpa | November 22, 2013 at 9:50 am

And thus, the cowboy poet bets the ranch on getting amnesty …

Phillep Harding | November 22, 2013 at 9:54 am

The author appears to be making the assumption that there is an ideological difference between the two parties. The difference I observe (especially at the National Committee level) is more “my gang, your gang, and let’s split the profits”.

MaggotAtBroadAndWall | November 22, 2013 at 11:40 am

I love the optimism but I don’t share it. This was not a fly by the seat of the pants impulse move. Progressives have wanted “filibuster reform” almost as long as they’ve wanted the government to takeover healthcare. The Democrats decision to blow up the senate was to create a de facto parliament. The America we’ve known since 1787 died yesterday.

With one more Senate rule change Obama will only need 51 Senators to give him what he wants to “fix” Obamacare. With only 51 Senate votes required, the fix could be a complete overhaul, including single payer. When that happens there will be so many people dependent on government that Democrats will have permanent government control. There will be no turning back. The coup d’état of the technocratic socialist elites, claiming to act on behalf of the “oppressed”, will be complete.

Everybody who has ever voted Democrat since the New Left took over the party in the ’60s and ’70s were voting for this day. They built a cohesive coalition of the “oppressed”: single women (feminists), blacks, hispanics, gays – guided by the hyper educated pseudo-Marxist intellectuals running the show – to challenge the existing social order. They’ve replaced republicanism with democratic majoritarianism. We now have a tyranny of the majority, with the “oppressed” now in charge.

Conservatives lost. Everything. The country is going to take a radical left turn and reap what we’ve voted for.

I hope I’m wrong, but I don’t think we’ve simply lost a battle. I think we’ve been defeated in the war. For better or more likely for worse, the one promise Obama honored is that he fundamentally transformed America.

All this, so the Democrats could install a couple of judges to the DC bench, and swing it to their side!

I’m guessing they have decided that they need control of that court to cover Obama’s but for what is coming! It’s not going to work!

BannedbytheGuardian | November 22, 2013 at 4:39 pm

If they can throw 200 + years of governance & custom away like that – they can throw the rest way also.

So can you.

Nothing is off the table including the very ‘united’ in the USA .

Your choice is chaos of Rome & being overrun by Barbarians / Dreamers or pre emptively dissolution eg British Empire 1919 or The USSR 1991 .

Elections are just kicking the can down the road . Gonna happen because unlike idiot Fukiyama history does not stop .

From F.A. Hayek’s Law, Legislation & Liberty, Vol III (The Political Order of a Free People) pg.6

…The step from the belief that only what is approved by the majority should be binding for all, to the belief that all that the majority approves shall have that force, may seem small. Yet it is the transition from one conception of government to an altogether different one: from the conception by which government has definite limited tasks required to bring about the formation of a spontaneous order, to the conception that its powers are unlimited; or a transition from a system in which through recognized procedures we decide how certain common affairs are to be arranged, to a system I which one group of people may declare anything they like as a matter of common concern and on this ground subject it to those procedures. While the first conception refers to necessary common decisions requisite for the maintenance of peace and order, the second allows some organized sections of the people to control everything, and easily becomes the pretext of oppression.

[…] William Jacobson thinks Klein is on to something.  As he sees it, the filibuster actually worked against conservatives, because it locked in incremental socialism.  For the past several decades, once Democrats got a redistributionist, nanny-state policy in place, nothing could dislodge it, an effect he calls “the rachet.”  By going nuclear, says, JacobsonReid opened the door to the complete reversal of Democrat policies.  When Republicans get their turn at the majority in Congress and take the White House (which many assume will happen at the end of Obama’s reign), they will easily be able to reverse every bad Democrat policy, something that was always impossible before: […]

The difference makes all the difference.
Were the Democrats in the Republicans’ positions, they would boycott the sessions and stand on the Capitol steps, complaining to the media all the while.
Why don’t the Republicans do the same. The visual of a half-empty Senate would get the point across.
Plus, Republicans need to mention that they will use the same tactic once in power.

    Henry Hawkins in reply to PacRim Jim. | November 22, 2013 at 10:38 pm

    Were the Democrats in the Republicans’ positions, they would boycott the sessions and stand on the Capitol steps, complaining to the media all the while.
    Why don’t the Republicans do the same. The visual of a half-empty Senate would get the point across.
    Plus, Republicans need to mention that they will use the same tactic once in power.

    The difference is that the media would listen to and report what the Democrats were protesting, in fact, would help them frame their argument. They would not do the same for Republicans, in fact, they would distort what Republicans were saying. Your half empty Senate would be made into a visual symbol of Republican intransigence, likely caused by the Tea Party contingent in their spare time between baby roasts and the torture of minority quadriplegics.

[…] The ratchet has been broken. […]

[…] The chaos caused by yesterday’s vote in the senate profits no one but Barack Obama. Barack Obama will be able to get some appointees through in the chaos he’s created but it is generally agreed by most commentators from Journolister Ezra Klein to Charles Krauthammer that this Senate rules change will come back to help Republicans: […]

[…] Democrats in the US Senate recently detonated the “Nuclear Option”, killing the filibuster for all practical purposes, even if superficially only as to non-Supreme […]