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Reid’s Senate Rule Change Was Purely Partisan—A Commentary by Stephen L. Carter ’79

The following commentary was posted on Bloomberg.com on October 12, 2011.

Reid’s Senate Rule Change Was Purely Partisan
By Stephen L. Carter ’79

Unless you follow chess, you probably missed the news that Hikaru Nakamura, the most talented player America has produced in a generation, lost a game in Bilbao, Spain, the other day when he overstepped the time limit.
Chess is played with a dual clock, and each player has a set amount of time to make a given number of moves. If you do so before reaching what is known as the time control, you get more time to make more moves; otherwise you lose. Nakamura, believing that he had reached the time control in his game against a less- talented opponent, left the table to get an orange juice. Unfortunately, he had made only 39 moves, not the required 40. He returned to discover that his time had run out, and the arbiter had declared the game lost.

Nakamura has a huge Internet following, and already there has been chatter among his fans that the time-control rule is stupid and should be changed -- the only rationale evidently being that the rule cost Nakamura first place.

This story comes to mind as one thinks about the recent decision by Democrats to eliminate, in the heat of the moment, one of the Senate’s many strange, hoary traditions: the ability of Senators to offer non-germane amendments to bills after the body has invoked cloture, ending debate.

The controversy arose during efforts by Republicans to amend legislation trying to punish China for currency manipulation. Perhaps the most striking of those amendments would have attached the original text of President Barack Obama’s $447 billion jobs bill, in order to force Democrats to vote up or down on the White House proposal.

Out of Order
Because the amendments were not germane -- not related to the legislative subject matter -- they could be offered only by unanimous consent of the body. Minority Leader Mitch McConnell sought that consent, and although the Senate parliamentarian said the motion was in order, Majority Leader Harry Reid quashed it. Instead, the body adopted a new interpretation, ruling such requests dilatory, and therefore out of order.

Unlike the House, the Senate has long operated in ways that give the minority a significant ability to block or at least slow the majority’s legislative agenda. Reid’s detractors have pointed to the long tradition of allowing senators to offer amendments even after cloture. His supporters have insisted that the Republicans were abusing the Senate procedures by insisting on their parade of amendments.

Both sides would seem to have a point. But here is what’s striking about Reid’s sudden decision to force a rules change: Nobody imagines that a single member of the Senate considered it on the merits, on what was best for the future of the body. The only question the senators considered in choosing up sides on the motion was where partisan advantage might lie.

The rules of Congress, contrary to the wails of some furious commentators, weren’t handed down on stone tablets. As the historian William Lee Miller established in his 1998 book “Arguing About Slavery,” many of the now-accepted traditions of both houses were originally developed as tools to restrict legislative debate on the institution of slavery. So let’s not pretend that tradition alone is evidence of the wholesome all- American character of any particular rule.

On the other hand, it also matters why a change is made. It is one thing to dump a rule after sober consideration, on the grounds that it turns out to have been a mistake. It is something else altogether to change it in the midst of heated partisan debate to gain momentary advantage. The first is the proper work of governance; the second is an effort to transform the practice of lawmaking into the game of Tegwar.

Game Without Rules
Tegwar -- short for “the exciting game without any rules” -- was immortalized in the 1973 film version of Mark Harris’s tragicomic novel, “Bang the Drum Slowly.” Tegwar was a scam through which the baseball players in the story, back in the days before sports millionaires, would earn extra money. On the road, they would play a card game that appeared to the uninitiated to be poker. A passerby would ask to join in, without ever inquiring what the game was -- and then would be taken by surprise when, hand after hand, he would lose because of rules he had never heard of. The rules were manufactured on the spot, so that the players could win every hand. If the mark ever complained, he was told they were playing not poker, but Tegwar -- surely he knew the difference? -- and he went away mystified.

Sadly, we live in an era when, more and more, the rules are changed as the game goes along, to make sure that the right side wins. Consider, for example, the Telephone Consumer Protection Act of 1991, which bans debt collectors who use robo-dialing from calling cell phones, and imposes substantial fines for every violation. Now that the federal government is the principal originator of student loans, the Obama administration has proposed removing this prohibition on robo-calling cell phones in some cases when the money is owed to the Treasury.

Maybe the anti-calling rule is a bad one. Certainly creditors have been arguing against it for years, pointing out - - as, ironically, the White House does in pushing for the exception -- that fewer and fewer people have land lines. Young people, in particular, tend nowadays to rely entirely on their cell phones. But the administration isn’t calling for a blanket repeal, only to exempt debt collectors working for the federal government. In other words, the intrusiveness of calling cell phones to collect a debt turns out to depend on whose ox is being gored.

The notion that a civilization is constituted by clear rules has been part of the Western tradition at least since Immanuel Kant, and may be found in many religious traditions long before. Of course, there are terrible rules that should be reformed or abandoned. But the grounds for overturning them should be precisely that -- that they are terrible -- and not that they suddenly interfere with somebody’s agenda.

Hikaru Nakamura has filed an appeal against the arbiter’s decision in that Bilbao chess match. I count myself as one of his fans, but I hope the appeal is rejected. He lost fair and square under the rules. His defeat doesn’t prove a defect in the rules, only that he should be more careful next time.

Chess is just a game. Politics is the serious work of governance. Certainly the rules of our legislative bodies -- or of anything else -- should be subject to fair criticism and debate. When necessary, they should be changed. But we should make those decisions after sober reflection on how to make the legislative process better. The worst possible reason to change the rules is to make it easier for one side to win.

(Stephen L. Carter, a novelist, professor of law at Yale University and the author of “The Violence of Peace: America’s Wars in the Age of Obama,” is a Bloomberg View columnist. The opinions expressed are his own.)