Norm! or: The Role of Unwritten Rules
About a week ago, a standoff over rules in the US Senate was temporarily averted when a number of Republicans agreed to end filibusters on seven of President Obama’s appointees to executive branch positions. The deal means that, at least for now, Democrats in the Senate will not use parliamentary procedure to change the Senate rules. This sort of dealmaking has been going on for a while, since with the exception of a few months in 2009 and 2010, Democrats have had a majority in the Senate but not a filibuster-proof majority. What seems different this time is that most reports indicate that this time there were 51 Democrats who were willing to vote to change the Senate rules on a strict majority vote rather than the 2/3 majority that is explicitly stated in the standing Senate rules. This is similar to a situation in 2005 when the Republicans had the majority and were threatening to use a similar parliamentary procedure to eliminate the filibuster on judicial nominations.
So now it seems like both parties have acknowledged that the majority can change the rules if it wants to, even though neither party has. Jed Lewison at Daily Kos argued that this means that from here on out, it should be clear that if the minority blocks a bill or an appointment using the filibuster, then the majority is complicit in allowing the minority to do so.
That doesn’t mean the filibuster is gone, and it doesn’t mean Republicans won’t continue to abuse it. It’s here, and surely they will. But when they do, Democrats won’t be able to claim to be powerless in the face of GOP obstruction.
I don’t know if it’s fair to say that the majority is just as responsible for every filibuster from here on out, but it would be fair to say that many people in the majority prefer keeping some of the norms and customs of the Senate intact over passing whatever law is being filibustered at the time. In this case, the norms being preserved are that changes to the rules are approved by a supermajority and the minority has significant ability to check the decisions of the majority.
I’ve been of the opinion for a while now that the filibuster is a problematic institution, and I support the efforts of people like Senator Jeff Merkley to substantially revise the procedure. But I am also sympathetic to the desire of some senators to maintain the “unwritten rules†that have guided senators for a long time. Norms, customs, and unwritten rules are an important part of any system or any society, and it’s important that members of the group have confidence that their peers will respect those norms.
Why are norms so important? Because no formal set of established rules and procedures is going to be able to cover every situation or be so comprehensive as to leave no wiggle room for ambiguity and exploitation. I can attest to this I spend my day teaching high school students, and then I come home and try to herd my 11-year-old daughter through her daily requirements. I am constantly on Loophole Alert, trying to spot the creative ways that someone will try to exploit the letter of my instructions in order to avoid following the spirit of the instructions. [Me: “Use the word platoon in a sentence.†Student: “The teacher told me to use the word platoon in a sentence.â€] Some of this is good, in that it keeps me on my toes. But it gets a little exhausting, and sometimes I just need to rely on common sense, etiquette, tradition, or whatever you want to call it to grease the wheels and keep things moving.
The same is true in other social and political institutions. Last week I noticed some people on Facebook posting that Queen Elizabeth II had “approved†same sex marriage and so the bill supported by Prime Minister David Cameron had become a law. That’s technically true, but the queen’s approval is pretty much a formality. Once the bill had passed through the House of Lords and the House of Commons, the queen was going to approve it regardless of what she thought. I couldn’t even find an article at the Guardian that noted the Queen’s approval. Once the bill had cleared all of the attempts to block it, the newspaper did not cover the formalities because the formalities weren’t actually news.
Technically, did the Queen have the power to reject the same sex marriage bill? I suppose so. But if she had, and inserted her own opinion over that of the democratically elected Parliament, it would have created enormous problems in British society. Democracy is maintained alongside a traditional monarchy through the power of norms and customs, not the power of formal rules. If someone tries to exercise a power that is technically “within the rules†but against the norms, then forces will rise to check and punish the overstepper. If the Queen were ever to reject a law duly passed by Parliament, I think the United Kingdom would be changing its name to the United Republic faster than you can ceremonial monarchy.
There will always be tension around norms and unwritten rules. Some people will not agree with them, some people will not respect them, some people will want to push the boundaries. And that’s a process that should go on; sometimes the unwritten rules break down and need to be revised, rethought, and codified. But when we weaken the power of norms and customs, there are consequences, and that’s something we have seen happen in the Senate over the last 20 years.
It used to be that senators were comfortable with voting for cloture on a bill and then voting against it. The norm was to say, “Even if I don’t agree with this bill, I respect the majority’s right to pass it over my objection.†But over time, especially as more voters and activists came to recognize that a minority had the power to block a bill if it chose to use it, voting for cloture became tantamount to voting for the bill itself. Pressure groups scored cloture votes, not just final votes. Activist blogs and networks organized campaigns to hold senators accountable for their cloture votes. Some senators were threatened with primary opponents based on their cloture votes. And all of this was taking place as the political parties grew more ideologically coherent and willing to use the parliamentary tools at their disposal to promote their agendas. All of these forces have been wearing down the old norms.
I still hope that the end result of that process is a reformed or removed filibuster that allows the Senate to more clearly respond to the decisions of the voters. But in the process the Senate is going to have to build a new set of norms and unwritten rules to replace the ones that have eroded. That’s a process that we as voters should observe and try to influence, but also one that will require some patience as people work it out.
About Dave Thomer
Born and raised in Philadelphia. Studied philosophy at Fordham University in the Bronx, where I made many great friends and met my wonderful wife. We moved back to Philadelphia, where I studied philosophy some more and became a teacher. Online and off, I'm looking for ways that we can be better citizens and build stronger communities.