Why Filibuster Reform Matters

Harry Reid, Chuck Schumer, and Dick Durbin on the unprecedented use of filibusters under President Obama (J. Scott Applewhite/Associated Press) via The Atlantic
Harry Reid, Chuck Schumer, and Dick Durbin on the unprecedented use of filibusters under President Obama (J. Scott Applewhite/Associated Press) via The Atlantic

Imagine for a moment that the US Senate is like a train with 100 people on board. The majority party gets to appoint the conductor, but in extraordinary situations, any one of the passengers can pull the emergency brake and stop the train. As one would expect, use of the emergency brake would be reserved for emergencies. If the emergency brake gets pulled once every few years, it probably means that the passengers are not abusing their responsibilities and can be trusted with it. If they pull it on 70 percent of trips, then we have a problem and it should be obvious to everyone that these yankers are simply trying to prevent the train from getting to its destination. Last week, the Senate agreed to limit the use of this emergency brake.

Like most stories in the news cycle, the Senate’s recent filibuster reform was a big deal for a day or two, and was then promptly forgotten. It’s worth taking a moment to think about what it means for the future of American democracy.

So what is a filibuster? It’s a procedure by which one senator can stand and speak for as long as he/she wishes in order to postpone/prevent a vote on a piece of legislation or a confirmation (not unlike an emergency brake on a train). It effectively gives all 100 senators the power to veto anything. In order to override a filibuster, 60 senators must come together and invoke “cloture” which basically forces the rambling senator to shut up. The filibuster is featured prominently in the 1939 Hollywood film Mr. Smith Goes to Washington (sound familiar?) in which a young senator uses the tactic to prevent the passage of an unjust law.

Is a filibuster good or bad? A filibuster is good because it’s a check on the power of the majority party; in extraordinary situations, the minority party can stand in the way of something they feel very passionately about. A filibuster is bad because it gives the minority party the ability to filibuster every little thing, even in non-extraordinary situations, effectively preventing the majority party from governing.

This bad scenario is exactly what’s been going on for the past five years. Both parties are guilty of abusing the filibuster, but the under the Obama presidency, this tool has been abused to an extent unprecedented in American history. Just about everything requires 60 votes to pass now.

This is not the way to run a government. It’s one thing to oppose a president. It’s reckless, however, to stand in the way of routine business and prevent the president and his party from governing. And that is why Harry Reid (Senate Majority Leader) went nuclear last week.

What’s the nuclear option? This refers to the recent vote in the Senate, which passed by 52-48, that eliminated the filibuster for all executive branch nominees and federal judicial nominations (other than the Supreme Court). On the surface, it doesn’t sound like much at all, let alone nuclear.

But why is this a big deal? The vote itself is not as remarkable as the fact that it became necessary. Let’s not pretend that government dysfunction is new. In some ways, bipartisanship is a myth that never existed. Conflict and hatred are old, but the current level of obstruction is new. The reason the recent “nuclear option” is such a big deal is that it’s an open admission that our polarized political climate is irreconcilable – one side will have to win.

In some ways, this is the end of congressional propriety, and it’s not because Washington is divided. It’s because the country is divided. It’s not as if filibustering Republican senators are scorned by their constituents for getting in Obama’s way. They’re treated like heroes. Every society must deal with the contradictory forces that pull it apart and keep it together. This contradiction is currently manifesting itself in ways not seen since the civil rights era. There is no consensus on how to govern. And this speaks to a larger problem. There is no consensus on what it means to be an American.

The Electoral College: Affirmative Action for Smaller States

In a previous post, I argued that the Electoral College is unrepresentative, unfair and inaccurate. In another recent post, I argued that affirmative action has come a long way over the past forty years and has outlived its utility.

Today I highlight some common themes expressed in these posts by equating the Electoral College as a form of affirmative action for small states. Our country’s framers were tasked with convincing 13 disparate colonies to form a union. The main hurdle to the Federalist agenda was ensuring small states (eg: Delaware and Rhode Island) that they would not be overpowered by the larger states (eg: Virginia and Massachusetts).

The clearest way in which smaller states were given guarantees of their own limited sovereignty was in the equal representation among states in the US Senate. Although membership to the House of Representatives was agreed to be allocated by population, each state, whether small or large, gets two Senators. This means that today, Wyoming’s 570,000 people have the same Senate representation as California’s 38 million.

Giving small states more power may make sense in Congress, but not in quadrennial national elections.

This overrepresentation makes some sense in the Congress where laws are created. In the complicated mess that is the legislative process, state interests can be clearly defined and it can be difficult for smaller states to fight for their interests – yes, some forms of affirmative action are OK.

The election of the President, however, Continue reading “The Electoral College: Affirmative Action for Smaller States”

How the Electoral College Works (or Doesn’t)

President Obama and Mitt Romney will meet in Denver tonight for the first of three debates that are to be held over the next two weeks. They will not be speaking to the entire country. They will not be speaking to the 47%. They will not be speaking to the 53%. More than likely, they will be addressing the concerns of people living in a handful of states, particularly Ohio, Florida, Virginia, Colorado, North Carolina, Nevada and Iowa.

These are the so called “swing states” in which neither candidate has a commanding lead. He who picks up the most votes in these states will almost certainly be the next President of the United States. Considering that my vote would be from New York, I may as well not vote. Here’s why.

The framers of the US Constitution were big fans of democratic governance in so far as it was not monarchical. The kings of Europe were bad. The American yeoman farmer was good, but not good enough to be trusted with a direct vote for the highest office in the land. And so they created the electoral college.

How it works

The Electoral College is made up of representatives whose only job is to vote for the President. The membership is basically equal to the total number of representatives in Congress. There are currently 538 electors: 100 (number of members in the Senate) + 435 (number of Representatives in the House) + 3 from Washington D.C., which has no Congressional representation.

The partisan colors reflect the current Congress only in which the Democrats control the Senate and GOP the House. DC is not winner takes all.

Whichever party/candidate garners the most votes in each state, typically gets all the electors from that state. This system is not a federal mandate as Maine and Nebraska award electors based on the most popular candidate per Congressional district. The federal government empowers states to decide how to allocate electors. In our country’s early history, it was no uncommon for state legislatures to decide how to allocate electors – this is a Republic after all! For the most part, we have a winner take all system based on state-wide popular votes.

Why it was created Continue reading “How the Electoral College Works (or Doesn’t)”

Filibuster Blues

The filibuster was once a measure of last resort. It is now used casually and consistently to obstruct legislation, debilitate the Senate and turn our government into an ineffective debate club.

Some definitions

  • filibuster: a parliamentary tactic in which any legislator can talk endlessly (or even threaten to do so) in order to delay, and thereby prevent a vote on a given bill or proposal.
  • cloture: the method used to end a filibuster whereby a “supermajority” of 60 members of the Senate vote to conclude all discussions on a bill.

A little history: The filibuster is not an American invention – Cato used it in Ancient Rome – but no modern legislative body has employed it with as much zeal as the United States. Speaking indefinitely to delay a vote on a bill seems like a parliamentary gimmick, but the procedure has been used hundreds of times in the US Congress. In Mr. Smith Goes to Washington, the title character of the film resorts to a filibuster to “do the right thing”. Strom Thrumond, on the other hand, presided over what is perhaps the most famous filibuster in US legislative history when he read for over 24 hours in opposition to the Civil Rights Act of 1957.

The current situation: The filibuster has always been a thorn in the side of almost every Congressional majority – both parties have used it over the past few decades. The difference now is that the practice is used so frequently that having a simple majority in the Senate (51 votes) is no longer enough. Even routine matters, like the appointment of federal judges and agency directors are held up until 60 votes are achieved. Frequent use of the filibuster is a good way for the Senate minority to prevent just about any legislation from passing. These days, most filibusters are not even carried out; the mere threat of one is enough to derail legislation. The current Senate minority party is basically saying “if we can’t govern, nobody will”. And if the current majority should happen to become the minority in the next Congress, there’s no reason to believe that they would behave any different. Call it retribution, call it political warfare, but don’t call it hope. As you can see below, the level of political obstruction we are witnessing is historically unique.

The problem: As Francis Fukuyama recently told Thomas Friedman for the New York Times

“There is a crisis of authority, and we’re not prepared to think about it in these terms…When Americans think about the problem of government, it is always about constraining the government and limiting its scope…But we forget that government was also created to act and make decisions.”

Checks and balances are good, but after a point, they are burdensome. Given that the country is divided 50-50 on many issues and the intensity of that polarization, it is unlikely that any party will amass the 60 votes needed to consistently invoke the cloture needed to circumvent filibusters. Friedman goes on to describe the end result:

To put it another way, says Fukuyama, America’s collection of minority special-interest groups is now bigger, more mobilized and richer than ever, while all the mechanisms to enforce the will of the majority are weaker than ever. The effect of this is either legislative paralysis or suboptimal, Rube Goldberg-esque, patched-together-compromises, often made in response to crises with no due diligence. That is our vetocracy.

Perhaps we have been lucky that until now, this flaw in our Constitution has not been exploited to its fullest potential. It took 200 years for this flaw to be made obvious, and now that it has, it does not look like it’s going to get any better any time soon.

The Individual Mandate and the Constitution

While the pundits thrive on turning the Supreme Court into a sporting venue, a couple of law scholars point out the obvious constitutionality of Obamacare’s individual mandate.

It’s difficult to imagine what the founding father and framers of the constitution had in mind when they set into motion the creation of the country and the republic more than 200 years ago, but we often seek their guidance in some sort of hindsight game of guessing their intentions. What would the framers think about abortion? Gay marriage? Government mandated healthcare? It’s not an entirely ridiculous practice – the US Constitution is the oldest living document of its kind in the world. This is no small feat for a country that is often regarded as a relatively young one. There are costs and benefits in basing our laws on the values and intentions of men who lived in the late 18th Century, but in the most recent instance of invoking the framer’s intentions, critics are barking up the wrong tree.

After a moment of reflection, it’s remarkable that the debate over the constitutionality of the individual mandate within the Affordable Care Act (ACA, aka Obamacare) has come this far. Yesterday, two remarkable articles were published in the New Republic.

In one, conservative constitutional law professor (Columbia) Henry Paul Monaghan argues that the mandate is obviously constitutional. In a nutshell, Congress has the right to regulate interstate commerce; since most people will, at some point in their lives, require medical care in the form of a service for a fee, it qualifies as a form of commerce that applies to the greater population; Congress has a right to regulate health insurance under the purview of interstate commerce. There may be outliers who live “off the grid” and would be forced to purchase something they may not need, but there is also a decent chance that they too will, at some point, need medical coverage. And besides, we often make sweeping legislation for the greater good at the cost of certain outliers – they ought not be an excuse to hold back society as a whole. The most telling sentence in Monaghan’s article was the last two sentences:

I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”

In the other article, another professor of law (Harvard), Einer Elhauge, gives examples of government mandated health coverage enacted by the founding fathers. They very first Congress, which met in 1790, passed a law mandating all ship owners to purchase medical insurance for their seamen. The bill was signed into law by a man named George Washington. Eight years later, an issue arose over the fact that this law covered drugs and physicians services, but not hospital stays. Congress responded by…wait for it…passing a law requiring all seamen to purchase hospital insurance for themselves.

I’m not a fan of trying to discern the exact intention of the Constitution’s framers. Even if we do pursue their intentions, we must make the right decision even if it conflicts with the framers’ intent. In this hullabaloo over the ACA’s constitutionality, there have been too many critics crying foul that we are violating the principals of the framers. It turns out even the framers were pretty clear in their support of individually mandated health coverage.

sidenote: there have been other, weirder individual mandates too. In 1792, Congress passed a law requiring all “able-bodied men” to buy fire arms. That’s right – not only a right to bear arms, but a law requiring that you must. Perhaps it’s a good thing that we don’t follow everything our framers set down to ink.