- The Washington Times - Tuesday, June 7, 2005

Winston Churchill believed that one of life’s most exhilarating feelings was to be “shot at and missed.” And that is what happened, or almost did in the Senate two weeks ago in the political firefight over confirmation of judges and the future of extended debate known as the filibuster. But the compromise that gave the so-called nuclear option a miss will prove a temporary truce awaiting the next round in the war over judicial nominations and ultimately replacement of ailing Chief Justice William Rehnquist.

For all of the rhetoric about the nuclear option, the broader consequences of ending “minority” rule in the Senate by eliminating the filibuster have been largely overlooked. Some will be profound, possibly the de facto transformation of the structure of American government to a more parliamentary-like system controlled by the party in charge and the leader in charge of the party: the president.

That change need not be bad. There is an argument that the political system invented by the best minds of the late 18th century no longer fits the world of the 21st century. Divided government and checks and balances served America well by enforcing a certain inefficiency of process through the “tyranny of the minority” that often impeded taking decisive action. Now, this system may be in collision with the realities of a globalized, instantly integrated, connected and in some ways more vulnerable world in which the main threat is not states and regimes bent on conquest. The threat is diaphanous and borderless extremists employing a perversion of religion, terror and even weapons of mass destruction to achieve their ends.

Three points are critical. First, anticipation of consequences in advance of their happening is inherently difficult and not always part of the human condition. In August 1964, only two senators in all of Congress voted against the Tonkin Gulf Resolution. No one imagined then that eleven years, 58,000 American and uncounted Vietnamese lives later, the United States would suffer the most ignominious defeat in its history. And in October 2002, when large majorities in Congress authorized the president the power to use military force against Iraq, few anticipated what the consequences would be less than three years later.

Second, many will argue that should the nuclear option be taken, it will be restricted to confirmation of judges and not to legislation and other senatorial duties. In other words, the Constitution would function as it has for nearly 220 years outside the Senate’s advice and consent on judicial appointments.

Third, others will dismiss the prospect of a quasi-parliamentary system as an hallucination. History helps make their point. Even with over a two-thirds majority in both Houses of Congress, FDR could not pack the Supreme Court. And the recent action by House Republicans over stem cell research flies in the face of President George W. Bush’s strong opposition. Hence, ending the filibuster will not shatter the republic, so this line of argument goes.

Regarding the likelihood that the nuclear option can be restricted to a single activity, the Racketeer Influenced, Corrupt Organizations Act, called RICO, is a stunning example to recall. Passed in 1970 for the purpose of crippling the Mafia, RICO is now routinely applied to prosecutions irrespective of links or association with organized crime. Once the nuclear option is taken, like RICO, the effects almost certainly will spread throughout the Senate and how it conducts its business no matter what is promised today.

Finally, regardless of which party is in power, to paraphrase Lord Acton’s caution about absolute power corrupting absolutely, the ability to control government may be impossible to resist. Imagine if President Bush or President Clinton ruled as prime ministers with strong majorities. How different would the world have been? The danger is the emergence of extremism of left and right persuasions influencing if not dominating each political party. In a quasi-parliamentary system, legislation, once unencumbered by checks and balances, would reflect those extremes and affect both foreign and domestic policy. And as long as the political middle has no place to go, it is unsettling as to what might unfold.

The Senate apportioned a great deal of time in considering the nuclear option. However, that debate shifted to the lower political common denominators. Republicans asserted that the president had the right to an up or down vote even though unstated by the Constitution. Democrats warned that ending the filibuster would make the Senate like the House.

Those arguments are diversions. Unless the Senate is prepared to look again without ideological biases at the consequences of the nuclear option, almost certainly when the time comes and the trigger is pulled, like the Tonkin Gulf before, there will be too many regrets in later years wishing that more meaningful and deliberate debate had taken place.


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