What goes around, comes around

A Bill Comes Due For Democrats: The Use of the “Nuclear Option” Will Now Curtail The Powers Of The Democrats In The Senate

1, December 5, 2016 jonathanturley Congress, Constitutional Law, Media, Politics, Society

In 2010, I (and others) criticized the Democratic leadership (including then Majority Leader Harry Reid and many of the continuing Democratic senators) for their use of the “nuclear option” in curtailing the power of the filibuster. I was equally critical of Republican leaders who previously suggested such a course of action. It was remarkably short-sighted and, like so many moves during this period, impulsive. The Democrats acted with little concern that they might ever be in the minority and need this critical power. They muscled through the Affordable Care Act on a marginal vote that cost various members their seats and passed a highly flawed bill that was plagued by problems of bad drafting and poor planning. Moreover, they secured relatively few confirmations to federal office. Now, however, the bill will come due for the Democrats as they long for the minority rights that they so blithely threw away. The first such cost will likely occur in the waiver that will be given to Gen. James N. Mattis who has not satisfied the requisite seven years to pass since retirement in order to become Secretary of Defense.

In 2010, Reid and his colleagues were warned by many of us that the decision would quickly haunt their party if polls continued to slide toward the next election. Perhaps the most poignant warning came from Republican Alabama Senator Richard Shelby “Democrats won’t be in power in perpetuity. This is a mistake — a big one for the long run. Maybe not for the short run. Short-term gains, but I think it changes the Senate tremendously in a bad way.”

Well, that time is now here. Retired Marine Gen. James N. Mattis is expected to be nominated but federal law requires a seven year period after retirement to assume his position. He retired only in 2013. It would fall to Congress to grant an exception — something that under the old rule the Democrats could block.

None of this is to take away from Mattis who is widely respected. However, the law is more than some passing gesture. It protects our tradition of civilian control over the military. It has only been waived once — for the iconic figure of Gen. George C. Marshall in 1950. Ironically, the rule was lessened eight years ago but also reaffirmed as a bedrock principle. Federal law once required ten years to expire. It now requires seven years after serving on active duty before someone can assume the office of secretary of defense or other senior civilian defense positions. The time limit reduced in 2008 — the only reduction of the original criteria from the 1947 national security act.

Whatever the merits or the outcome of this vote, Democratic senators served their constituents poorly in casually discarding this long-standing protection of minority rights.