In the wake of the Senate’s failure to invoke cloture on the nominations of Caitlin Halligan to the D.C. Court of Appeals and Richard Cordray to head the new Consumer Protection Board, there has been a lot of criticism about the filibuster. A number of writers are very concerned about the use of the filibuster to deny confirmation to an agency head as a protest against the agency itself. Steven Benen called it “extortion politics.” Jonathan Cohn likens it to antebellum nullification, echoing Tom Mann’s assessment from this past summer. I’m not sure I agree with the use of the term “nullification,” but I see where they are coming from. It’s definitely an institutional development.

Personally, I like the more neutral and wider formulation that Jon Bernstein uses (via Mark Tushnet): hardball (see here and here and here). The idea of hardball is pretty straightforward: an institution like the Senate is governed by rules and standing orders and precedents, but it is also governed by norms. When political actors abandon the norms and insist (as they have every right) on the literal enforcement of the rules, short-term strategic advantage (for an individual or party) can often be gained. A popular example of such a norm was the past practice of not filibustering judicial nominations purely on partisan or ideological grounds. But it can be applied across any set of norms, and is by no means limited to the Senate, or even politics for that matter.

There’s nothing extra-legal or inherently wrong with hardball. Quite to the contrary, it’s every Senators right to take full advantage of the rules and demand that they be followed. The problem, however, is that the short-term advantages an individual or faction can derive from hardball often create undesirable situations when universalized. As more and more individuals (or both parties) abandon a given norm in favor of the strict rules, the comparative advantage recedes and the resulting equilibrium may create an institutional context that nobody prefers to the old system of norms. Multiply this across a whole range of different norms, and you have a potentially serious problem.

A good analogy is college basketball. By the early 80’s, two norms had completely broken down in favor of the strict rules: late-game fouling to stop the clock to put the other team on the line for a 1-and-1, and stalling with the ball when holding a lead late in the game. Both of these strategies are wise, but when universalized and maximized they began to destroy college basketball, especially when set together in concert: teams with leads began stalling earlier and earlier (sometimes with 5 or more minutes to go in the second half), and in response teams that were losing began fouling earlier and earlier.

The final minutes of college basketball games were no longer resembling basketball games at all. Even worse, inferior teams began to realize that they could build their entire strategy around these concepts. Hold the ball for minutes at a time to reduce the number of possessions (and therefore increase the variance/luck of the outcome), and intentionally foul to produce 1-and-1’s. The solution, luckily, was relatively simple: change the rules. A 45-second shot clock was introduced for the ’85-86 season, and later the “double bonus” was added so that continuous fouling would result in 2 shots, not  1-and-1. It hasn’t completely solved things (and never will) — teams still have incentive to foul and incentive to use up the shot clock — but it has severely reduced the problem.

As you might have guessed, though, it’s not exactly easy to change the rules in the Senate.

All of this is context swirling around the main point I want to make here, which is that while hardball may be on the rise in the Senate, we’re nowhere near anyone playing absolute hardball with the Senate rules. The system is still largely held together by norms. Think about the defeat of the motions to invoke cloture on Halligan and Cordray. Both of those cloture votes were scheduled by unanimous consent. In fact, just check out the order passed by unanimous consent last Wednesday night:

I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:30 a.m., on Thursday, December 8, 2011; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; that following any leader remarks, the Senate proceed to executive session to consider Calendar No. 413, the nomination of Richard Cordray to be Director of the Consumer Financial Protection Bureau, with the time until 10:30 a.m. equally divided and controlled between the two leaders or their designees; and that the cloture vote on the Cordray nomination occur at 10:30 a.m.; finally, that if cloture is not invoked, the Senate resume legislative session and resume consideration of the motion to proceed to S. 1944.

There’s a UC in there for (1) adjournment, (2) approval of the journal, (3) the expiration of morning hour, (4) proceeding to executive session, (5) debate structure and limits on the nomination prior to the cloture vote, (6) the timing of the cloture vote, and (7) the return to legislative session if the cloture vote fails. That’s a window into just how much is done in the Senate by unanimous consent. And remember, that’s just one UC agreement. There are dozens of things that are routinely dispensed with by UC: the first and second reading of bills, the reading of amendments, the live quorum calls prior to cloture votes, the ending of strategic quorum calls, and so on. And this isn’t unusual: the Senate floor is more or less run by unanimous consent. Every day. Even when it’s being locked up by a filibuster.

And therefore, if any individual Senator wanted to really gum up the works on any given day, it’s certainly not hard. You can just go down to the floor and sit at your desk and object to everything.  Floor time is already scarce, and having to read the journal and hold morning hour and read all bills and all amendments and hold a live quorum call prior to all cloture votes would only make it more so. There are incredible stories of Howard Metzenbaum doing just this a generation ago: sitting at his desk in the Senate and objecting to every single UC until whatever concern he had was mollified. Now that’s hardball.  Now again, the point here is not that people aren’t playing hardball with nominations, they are. The point is that there’s a lot of hardball left to be played before the norms completely break down. Which, of course, raises a key question: why don’t Senators play absolute hardball?

There are a few reasons. First, individual Senators need help in accomplishing their own goals. The norms aren’t simply held in place by tradition; there are strong ambition incentives that bind people to them. The Senate is a repeated game, and while absolute hardball may get you a short-term victory, it’s likely to be a long-term disaster. While Senate leaders and the party caucuses aren’t all-powerful, they do control enough goodies and have enough discretion that they can harness the ambitions of individual Senators to keep them in line. A Senator with no long term goals and an interest in jamming up the floor would be dangerous indeed. But luckily for the Senate, most Senators have policy and/or political goals of their own that they would like the advance. And so looming over any individual who is considering all-out hardball is the threat of losing all support for their own current and future goals.  And thus the lack of rouge lone wolf ultra-objectors.

Second, individuals and minority parties need to worry about the majority changing the rules. If you locked down the Senate floor by announcing that you were going to object to every single unanimous consent request from here on forward, my guess is that the rules would change rather quickly in some way (perhaps as simply as by putting in a new rule that allowed “unanimous consent” unless two objections were heard!). Or they’d just expel you. But this is a key point: Senators and parties playing hardball in the modern age aren’t upset by the current system; they see the current system as benefiting them. They aren’t out to change the rules, they’re simply out to exploit the rules to maximum benefit. And therefore they need to walk a tightrope line. Yes, the minority could demand all post-cloture rights and use up the 30 hours of debate and never agree to schedule a cloture vote by UC and just demand “regular order” at all times. But it would ultimately backfire.

On the other hand, thinking about the future, the Senator or group of Senators who might want to  play absolute hardball are the person or persons who want to radically amend the current system of rules. That person/persons will not live in fear of the rules being changed, but instead will welcome it. Some future group of Senators, perhaps only a handful, will take to the floor, Metzenbaum-style, and simply object to everything until they are mollified. But unlike Metzenbaum, they will not be seeking leverage over public policy; they will be seeking to change the rules themselves. And if they can prove that they don’t care about being punished by the leadership or marginalized by the rest of the chamber, they will succeed. Because the Senate will only have three choices: sit in complete gridlock; change the rules to mollify the objectors; or change the rules to get around the objectors. The first is not tenable, and the latter two achieve the same end for the hardballers.

There’s a strange sort of symmetry to all of this: the setting aside of norms in favor of hardball is both the cause of much consternation about the Senate, but also a potential solution to it. Those upset by the exploitation of the rules may come to see the exploitation of the rules as the way out of the hardball spiral. I have no crystal ball into the future of the Senate, nor do I think we are particularly close to the snapping point over the norms/rules. But the steam seems to be building a bit, and the release valves that currently exist — most importantly landslide elections — may not be enough to thwart a growing sense among some that the rules need to change, and that absolute hardball is the way to change them.