QUOTE OF THE MONTH – “The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic State itself. That, in its essence, is Fascism – ownership of government by an individual, by a group, or any controlling private power.”
Franklin Delano Roosevelt
SENSE AND NONSENSE – THE TYRANNY OF THE FILIBUSTER
From the editor: The Republican Party has maintained a one-item agenda in their political platform since the Roosevelt-Truman eras in the 1930s, 1940s, and 1950s, during which the 20th Century American middle class was created and supported. The conservative agenda is to transfer the national treasury out of public coffers into private hands. Republican President Dwight Eisenhower famously warned Americans against the avarice of the “military-industrial complex” when he left office in 1958 (see “The Compass,” vol. III, no. 7). Over the last five decades, conservatives have used three primary “tools” in their pursuit of the public treasury. The tools are: (1) a propaganda campaign aimed at demonizing the legitimacy of so-called “big” government; (2) a relentless campaign to capture a majority of Supreme Court seats; and (3) globalization of corporate power through regime change assisted by the CIA and the Chicago School of Economics created by Milton Friedman (see “The Shock Doctrine” by Naomi Klein).
The 2010 New Year’s Resolution of The Compass is to shed as much light as possible on each of these tools. We started this year by focusing upon the disappearing middle class (January, 2010, issue) and the disastrous Supreme Court decision that allows unlimited corporate spending on elections (February, 2010, issue).
In this issue, we are focusing upon a little-understood rule of the U.S. Senate responsible for delivering the conservative message that big government cannot get anything done. Senate Rule 22 (the “filibuster rule”) is now being used by conservatives in much the same way that former Speaker of the House, Newt Gingrich, shut down the federal government by refusing to pass the Budget Reconciliation Bill in 1995 and early 1996. President Clinton refused to give in to Republican demands to approve draconian budget cuts to Medicare, Medicaid, education, environmental controls, and the Earned Income Tax Credit. The government did shut down twice, costing taxpayers $800 million, but Gingrich’s political miscalculations ultimately led to a political victory for Democrats in the 1996 presidential election.
In the last two years, Republicans have sought to discredit government without directly shutting down the government. Instead, they are relying upon Senate Rule 22 to prove that government cannot solve problems that Main Street Americans face every day. Primarily because of weak leadership by Senate Majority Leader Harry Reid and President Obama, Republicans have enjoyed success beyond what even back-room Republican strategists hoped to achieve. Reid has no backbone, and Obama has created a leadership vacuum by pursuing bipartisanship instead of solutions to the problems that ordinary Americans face. In short, the Reid/Obama image of weakness is being exploited on a daily basis by Republican leadership. There are currently at least four ways in which the filibuster rule could be changed.
- The Constitution gives each body of Congress the authority to adopt and change its own rules. Article I, Section 5 of the U.S. Constitution says, “Each house may determine the rule of its proceedings.” In plain words, the Senate is authorized to determine its own rules without interference by the House, the President, or the courts. This was the threat that a Republican-led Congress used when Democrats threatened to block some Bush judicial nominees in 2005. Senator Trent Lott of Mississippi called it the “nuclear option.” He meant that the Republican-controlled Senate would invoke its constitutional authority to end the filibuster. The Democratic minority caved in by deferring to an ad-hoc group of 14 Senators known as the “Gang of 14.” As one might guess, this was a way for Democrats to “kick the policy can down the road” without getting anything in return. If they had made the Republicans invoke the “nuclear option,” they would have created a backlash effect similar to the effect Clinton created when he did not give in to Newt Gingrich’s threats in 1995.
- Filibusters are not allowed if a bill is considered under the rules of “reconciliation.” Reconciliation historically has been reserved for budget issues that would reduce the deficit. However, in 2001 and 2003, Republicans used reconciliation to enact large tax cuts that increased both the annual deficits and the national debt (a cumulative total of all annual deficits minus annual surpluses).
- The Supreme Court ruled in U.S. v. Ballin (1892) that Senate rules can be changed by a simple majority of 51 votes. However, under current Senate rules, a change in rules requires 67 votes. Senate Majority Leader Reid currently believes the 67-vote requirement ends the debate over passage of proposed legislation that would limit the abuse of the filibuster rule. In response to a proposal by Sen. Tom Harkin of Iowa and Sen. Jeanne Shaheen of New Hampshire that would curb the abusive use of Senate Rule 22 by the Republicans, Reid said, “It takes 67 votes, and that kind of answers the question.”
- In 1964, Senate Majority Leader Mike Mansfield ended Senator Strom Thurmond’s filibuster of the Civil Rights Act by refusing to refer any further business to the Senate. This strategy, in effect, required the filibuster to be kept up indefinitely. Although Thurmond still holds the record for the longest filibuster at 24 hours and 37 minutes, Mansfield successfully demonstrated the abuse of the filibuster rule can effectively shut down government. Since 1975, Senate procedures no longer require that Senators keep talking to maintain the filibuster. Now obstructionist Senators just have to declare they intend to filibuster. Such an announcement automatically creates the need for 60 votes to bring “cloture” to a filibuster.
(Editor’s Final Comment: Harry Reid and President Obama are allowing Senate Republicans to pin the obstructionist “tail” on the Democratic donkey. Instead of weak verbal attempts such as calling Republicans “the party of ‘no,’” congressional Dems need to DEMONSTRATE that Republicans are obstructionist. Reid and Obama need to learn from the Clinton/Gingrich showdown and the Mansfield/Thurmond stand-off. Reid needs to call the Republican bluff and demonstrate that the unprecedented abuse of the filibuster by Republicans is in fact shutting government down. Let them filibuster and require them to be present and talk. Refuse to consider anything else until there is an “up and down” vote on the bill being filibustered. Alternatively, Reid can change the rules today if he wishes to do so. He can choose between the Constitution, the precedents set by the Republicans when they controlled Congress, and a dramatic demonstration that Republicans are responsible for the ineffectiveness of government. The founding fathers envisioned a Senate that would pass legislation by a simple majority of 51 votes rather than a supermajority of 60 or 67 votes. That is why they empowered the Vice President with the power to break ties. Reid’s lack of leadership as Senate Majority Leader essentially has emasculated the power of the Vice President in Senate votes. President Obama needs to abandon a strategy of publicly pursuing bipartisanship in favor of using his “bully pulpit” to hoist the Republicans on their own petard. Obama should repeatedly echo the sentiments of Franklin Roosevelt expressed in this newsletter’s “Quote of the Month.” Democrats need to pin the obstructionist “tail” on the elephant. One more thing: Reid could learn a thing or two from Speaker of the House, Nancy Pelosi. The Republicans are afraid of her.)
Maynard Chapman, Editor
The Compass Newsletter
THE CONSTITUTIONAL CASE FOR MAJORITY RULE
From The New York Times: Attorney Thomas Geoghegan makes a strong Constitutional argument for “majority rule” in an opinion piece published in the January 10, 2010, edition of The New York Times. Following are excerpts:
“For the record, nothing like Senate Rule 22 appears in the Constitution, nor was there unlimited debate until Vice President Aaron Burr presided over the Senate in the early 1800s. In 1917, after a century of chaos, the Senate put in the old Rule 22 to stop unlimited filibusters….
“As revised in 1975, Senate Rule 22 seemed to be an improvement: it required 60 senators, not 67, to stop floor debate. But there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don’t even have to start; they just say they will, and that’s enough….
“As a result, the supermajority vote no longer deserves any protection under Article I, Section 5 -- if it ever did at all….
“Here’s why. First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments….
“Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are ‘equally divided.’ The procedural filibuster does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties. With supermajority voting, the Senate is never ‘equally divided’ on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote.” (Editor’s Note: Ben Nelson of Nebraska and Joe Lieberman of Connecticut are prime examples of ‘rogue’ senators.)
“Third, Article I pointedly mandates at least one rule of proceeding, namely, that a majority of senators (and House members, for that matter) will constitute a quorum….
“In Federalist No. 75, Hamilton dismissed a supermajority rule for a quorum thus: ‘All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority….
“So on the health care bill, as on so many other things, we now have to take what a minority of an inherently unrepresentative body will give us. Forty-one senators from our 21 smallest states -- just over 10 percent of our population -- can block bills dealing not just with health care but with global warming and hazards that threaten the whole planet….
“What can be done about the procedural filibuster? There are several promising lines of attack.
“If the House passed a resolution condemning the use of the procedural filibuster, it might begin to strip the supermajority of its spurious legitimacy….
“The president of the Senate, the vice president himself, could issue an opinion from the chair that the filibuster is unconstitutional. Our first vice presidents, John Adams and Thomas Jefferson, felt a serious obligation to resolve ties and tangles of an evenly divided Senate, and they would not have shrunk from such a challenge.
“We citizens could also demand that our parties stop financially supporting senators who are committed to the filibuster, and we ourselves could deprive them of fund-raising dollars.”
Copyright © 2010, The Compass Society
