The Duty to Obstruct

By Nick Catoggio

Friday, April 19, 2024

 

The conservative movement is obstructionist by nature. How could it be otherwise? It was conceived, famously, with a pledge to “stand athwart history, yelling Stop.”

 

For most of the past 50 years, the basic narrative of domestic politics has imagined liberal Democrats seeking to expand government and conservative Republicans mobilizing to thwart them. That narrative is more fiction than fact, as a glance at federal spending under Republican administrations will demonstrate, but the attitudes it describes abide. A felt duty to obstruct is part of the modern right’s political DNA.

 

Obstruction is tricky business in a representative democracy, though.

 

All stakeholders in a democracy believe (or claim to believe) that the majority is entitled to work its will and that the minority is entitled to make its objections known. Members of Congress can and should oppose legislation that hurts their constituents by voting against it when it comes to the floor. That’s not obstruction, it’s democracy in action.

 

Obstruction is when members use their procedural leverage to prevent legislation they oppose from reaching the floor for a vote in the first place, especially if they have reason to believe the legislation would pass. Denying the majority the ability to work its will in that case may be democratic in a formal sense, by comporting with parliamentary procedure, but it sure ain’t democratic in substance.

 

On Thursday night, three Republicans on the House Rules Committee used their procedural leverage to try to prevent Mike Johnson’s Ukraine aid bill from being considered by the full House. Thomas Massie, Chip Roy, and Ralph Norman each voted no, which normally would have been enough to kill the legislation. In this case, however, the panel’s Democratic minority voted yes—a remarkable act of bipartisanship given the tradition on the committee that the minority always votes no if doing so would defeat the rule. 

 

Less than 12 hours later, the full House voted overwhelmingly—316 to 94—to advance the legislation toward final approval. Nearly three times as many Republicans supported that effort than opposed it. And no one was surprised by that outcome: Massie, Roy, and Norman surely knew that a majority of the full House and very likely a majority of their own party would back the legislation if it made it out of committee and onto the floor for a vote.

 

They tried to block it anyway.

 

Has the “duty to obstruct” gone too far?

 

***

 

In answering that question, we shouldn’t be sanguine about the good ol’ days.

 

The longest filibuster in Senate history came in 1957, when Strom Thurmond, then a Democrat, spoke for more than 24 hours against the first federal civil-rights legislation in more than 80 years. When he finished, the bill passed with supermajority support.

 

Seven years later, a group of Southern senators held the floor for weeks to delay the passage of the Civil Rights Act of 1964. That bill also passed with a supermajority margin.

 

If you’re looking for horror stories about the “duty to obstruct” having gone too far, it’s hard to top racists obstructing equal rights for African Americans. That’s pretty far!

 

Even so, using procedural tactics to thwart the will of the majority does seem to have become normalized to an unusual degree in our era. The filibuster is the supreme example. No longer do senators have to hold the floor to block a popular bill, as Thurmond did. It’s commonplace for legislation that enjoys the support of a majority of senators to be abandoned because a determined minority has conspired to deny it the 60 votes needed for cloture.

 

The “duty to obstruct” has produced a de facto supermajority requirement for passage in the upper chamber, one that appears nowhere in the Constitution. That’s … pretty far. 

 

Obstruction is harder in a body like the House, where the majority is assured of prevailing if it has the good sense to stick together. If it doesn’t, and the current majority plainly doesn’t, we end up with bizarre spectacles in which the speaker consistently moves major bills under “suspension of the rules” in order to bypass obstructionists from his own party on the Rules Committee.

 

“Suspension” requires two-thirds of the House to support a bill for passage. Which means, amazingly, the House too has adopted a de facto supermajority requirement lately for must-pass legislation.

 

The most outlandish example of the “duty to obstruct” metastasizing is probably the motion to vacate the chair. Until last year, never once in American history had a speaker been ousted on such a motion; that Rubicon was finally crossed in October, and as I write this the number of House Republicans willing to repeat the process at Mike Johnson’s expense has reached three and counting.

 

Decapitating your own leadership because it dared to advance a bill supported by the vast majority of the House and a majority of your own conference is way past “haywire” on the obstruction scale.

 

The obstructionist tendency has even infected the majority in a few extraordinary cases over the past 10 years. Just this week, Senate Democrats quashed the House’s impeachment articles against Homeland Security Secretary Alejandro Mayorkas on a party-line vote without holding a trial. In 2016, Senate Republicans refused to hold hearings on Merrick Garland’s nomination to the Supreme Court and kept the vacant seat open for months instead. In both examples, the majority sensed electoral advantage by short-circuiting the people’s business and seized it.

 

So, yes, I think the “duty to obstruct” has gotten meaningfully worse in our era, distorted beyond reason to normalize brinkmanship that would have dumbfounded earlier generations in many respects. We had a near-coup in the United States three years ago, you may recall, when Republicans mobilized to try to stop the Democrats’ presidential victory from being certified. As a measure of truly deranged congressional obstructionism, that will hopefully never be topped.

 

But why is the “duty to obstruct” getting worse?

 

***

 

The answer to that question starts with another question: In a representative democracy, who does a member of Congress represent?

 

“Their constituents,” you might say, and of course that’s true. But it’s not that easy.

 

As Wyoming’s sole representative in the House, Liz Cheney voted to impeach Donald Trump for his dereliction of duty after the 2020 election. Most voters in that state opposed impeachment. So why did Cheney vote the way she did?

 

Clearly, she believed her highest duty of representation was to represent the constitutional order, not the majority in Wyoming. 

 

That’s an unusually high-minded example of a member rethinking the nature of their “constituency” but it illustrates how fluid the concept of representation can be. To take another example, one recent poll found 61 percent of Republicans nationwide oppose further aid to Ukraine—and yet, judging by Friday morning’s floor vote, a strong majority of House Republicans is prepared to approve that aid.

 

Who, exactly, are they representing by doing so?

 

It can’t be that Republican voters in every last one of their districts deviate from the national trend by supporting Ukraine aid. It must be that those House members are reimagining who their highest “constituency” is in this moment. It’s the American people writ large, perhaps. Or it’s a majority of the voters in their district, not just the Republicans among them. Or it’s the entire Western liberal order, which can’t afford to lose a fight to an authoritarian like Vladimir Putin.

 

“Representation” is an inherently slippery concept, potentially describing a duty to one’s district or state, one’s party, one’s nation, one’s international coalition, or something even gassier. The reason the “duty to obstruct” has become more robust in our era, I think, is because members have been incentivized to re-imagine who their constituencies are and to prioritize them over more traditional versions.

 

Here’s a notable Q&A between Politico and former House Speaker Newt Gingrich, who was asked why Mike Johnson is having such a hard time pacifying the MAGA bloc of his conference.

 

Do you ever look at the House and think, “If I was speaker, I could get these knuckleheads in line?”

 

You can’t keep them in line, because the technology’s changed. They have the ability to make noise, they have the ability to go on television, and they have an ability to use the internet to raise money from [people] who only know who they are because they saw them on television, so what do they care?

 

Whom does Marjorie Taylor Greene truly represent? Is it the voters of Georgia’s 14th District or is it a national constituency of post-liberal populists who watch Newsmax intently, donate generously to her political efforts, and amplify her daily musings on social media?

 

It used to be said that “all politics is local.” In the modern media environment, however, it’s closer to the truth to say that all politics is national. Many ill effects flow from that.

 

The nationalization of politics gives every dispute the feel of an existential clash between great warring tribes, which tends to polarize the participants. Those participants then get more aggressive about exploiting their tribal advantages, which produces, among other things, extreme partisan gerrymandering of House districts. That in turn means most members will be reelected ad nauseam by their districts so long as they protect their activist flank in primaries.

 

Between the radicalizing effects of nationalization on tribal partisans and the electoral incentives that radicalization creates for representatives, a figure like Greene—or Matt Gaetz, or any number of MAGA types—has every structural reason to extend the “duty to obstruct” as far as she can. Her many constituencies, inside and outside her home district, will love her for it.

 

There’s also something intrinsic to modern populism that’s expanding that sense of duty.

 

Greene, Gaetz, and the rest of the usual suspects don’t define their political enemies strictly by partisan affiliation. They imagine their tribe differently: It’s the so-called “uniparty” or “establishment” against whom they’re pitted, not just Democrats. Remember who it was that vowed to “eradicate” Trump skeptics from the GOP a few months ago. And how much more respectful Gaetz can sound when discussing far-left populists than some members of his own party.

 

Obstructing bipartisan business in Washington is basically the raison d’etre of populism. As such, go figure that adherents tend to practice their duty to obstruct with unusual zealousness, forcing the House and Senate to resort to supermajority thresholds to conduct basic business. 

 

And go figure that traditional Republicans, cast as “uniparty” enemies, might come to view those populists as enemies in return. That helps explain why so many of them are prepared to support Ukraine aid despite the opposition of their base, I think. They regard the populist bloc as a pernicious and hostile adversary, not just another faction of their own party, and refuse to genuflect to its influence over Republican voters on a matter as momentous as the war in Ukraine.

 

They might also suspect that the duty populists feel to obstruct democratic business stems from something deeper and more malevolent than driving a hard bargain on legislation. The authoritarian project profits from democratic dysfunction, after all, and there are an awful lot of authoritarian-curious Republicans out there standing athwart classical liberalism, yelling stop. For the Greenes and Gaetzes of the world, obstruction is an end in itself, not just a means to some policy purpose.

 

Perhaps traditional Republicans have come to feel a duty of their own to obstruct the post-liberal agenda—at least on matters where Donald Trump isn’t bullying them, as he did after the 2020 election. Which, if so, has led them to lay aside their usual obstructionist impulses toward the other party temporarily and to cooperate with Democrats against the common enemy to the right.

 

For the moment, the age of obstruction has produced a surprising new era of bipartisanship. How’s that for irony?

 

***

 

If we agree that the “duty to obstruct” has gone too far, it follows that we should ask when it’s appropriate.

 

It has to be appropriate sometimes, no? Those who believe that procedural tactics to block legislation are always wrong are invited to explain why legislative business in Congress shouldn’t be conducted via petition instead. Why not just let members circulate proposals to each other and deem anything that draws 218 signatures in the House or 60 in the Senate as passed?

 

We take for granted that the majority in each chamber should control the floor yet that’s inherently obstructionist. The minority in the House and Senate surely have some good ideas for legislation that most of the American public would support, yet we accept that those ideas won’t receive a vote. The majority’s right to obstruct popular elements of the minority’s agenda trumps all.

 

In any legislature, there must be an opportunity for obstruction. Imagine the next Congress, with Republican majorities in both chambers, advancing some sort of Enabling Act for President Trump. You wouldn’t want Democrats powerless in that case.

 

I’m inclined to propose that members should always allow legislation related to policy to come to the floor and should reserve their obstruction tactics for matters of grave civic or moral import. But that’s an unsatisfying standard, as “grave civic or moral import” is in the eye of the beholder. According to Greene, for instance, the “most repulsive, disgusting thing happening” in Congress right now is the “uniparty’s” attempt to save the Ukrainian people from being pulverized and persecuted.

 

It’s of grave moral import that we not use American tax dollars to impede dissolute Russian fascists. See how quickly that standard breaks down?

 

Even if we could agree on a more elegant standard, it wouldn’t deter obstructionist brinkmanship for long. The fundamental problem of our era is that both sides believe the other wants to turn America into a banana republic and both have some reason to believe that—although one has a lot more reason than the other. To blithely declare that the majority in a representative democracy is entitled to work its will is to evade the uncomfortable question of whether that logic should apply if the majority itself is fundamentally immoral or anti-democratic.

 

So long as that suspicion exists, it will nourish the duty to obstruct that each tribe feels. No wonder so many Americans expect things to get ugly in November.