Musings from the Bunker 4/1/21
“The truth does not change according to our ability to stomach it.” –Flannery O’Connor Happy April Fool’s Day! THE FILIBUSTER There was a time when I could see the value of the filibuster. The argument goes like this: a mere majority of the Senate ought not be enough to pass legislation. In order for legislation to pass, that legislation has to appeal to more than just the bare majority enjoyed by a single party. There must be at least 60 votes in favor, or a “super majority.” The time has come for change. First, what are we talking about:
The Constitution does not provide for a super-majority. The Senate and the House are “majority rule” bodies. The filibuster and closure votes are, within the context of history, more recent phenomena.
The filibuster is the way in which a member of the Senate could take the floor and speak indefinitely, not yielding the floor to another person. The condition was that they maintain the floor (standing, I believe), speaking uninterrupted. Upon ending their speech, control would revert back to the chair.
The filibuster was originally conceived as a way the slave states could control the Senate floor and restrict any legislation coming to the floor that didn’t suit them.
The “rule” that we confuse with the filibuster is really just the means by which the Senate can vote “cloture,” or the way in which someone’s filibuster can end. It used to be that a 2/3 majority was required in order to “shut up” a Senator. That number has been lowered to 60. There is no rational basis for that number—or any other number—being the right number. I believe that number should be lowered.
Now, the Senator “filibustering” (is that’s a word) does not need not speak indefinitely; he or she need only record their desire to gum up the works. The only way to get them to remove their objection to proceeding is the aforementioned vote.
So why change the rules?
First off, it isn’t a constitutional issue.
Second, if we are concerned about minority representation in the Senate, let us recall that the Republicans have wielded effective minority control, through a clear majority, when Mr. Obstructionist (Mr. McConnell) controls the agenda, or practical minority control, when in a minority of 41 or greater. Why do I say this? Because the system already is tilted toward the less populous and rural states where Republicans are dominant. This means that the 50 Democratic senators represent fully 40 million more Americans than do the 50 Republican senators. Their minority already is over-represented.
Third, by not requiring someone to drone on and on at the floor of the Senate, the “burden of proof” shifts from the obstructionist to the majority. In other words, it is incumbent upon the majority to explain why they are trying to legislate with a majority and somehow “ignore” the minority. If, instead, the obstructionist is in plain view, then it becomes incumbent upon that party to explain why he or she is taking control of the floor and blocking legislation. Basically, today one need only “mail in” a filibuster and wait for the other side to try to amass the votes to stop the “phantom filibuster.” Let’s let the minority have to explain obstruction.
Fourth, we can all agree that there is significant polarization in our body politic, with an unusually high number of members of each party that effectively will never be persuaded by the other side or any argument to pursue the people’s business for the public good. That number is pretty high; hence the 60 vote number is too high. It basically ensures no legislation other than watered-down unimportant legislation. The Senate becomes a body whose primary task is naming post offices and interstate highways. There are likely not ten members of either party that will ever vote cloture. If so, it’s a guarantee of deadlock. The number should be lowered to 55, at most.
Finally, for all the ranting and raving about how changing the filibuster will forever change the sacred Senate rules and the Senate will become a “scorched earth” regime, how can it be any more scorched than the chief arsonist—Senator McConnell—has made it?
THE MCCONNELL RULES I will stipulate that the Democrats, in an effort to get federal judges appointed, eliminated the cloture vote to get some judges appointed way back when. The situation at the time was desperate, as large numbers of seats remained unfilled. Let’s remember that the obstruction was not on qualification grounds, but ideological grounds. As the great jurist Antonin Scalia famously said, “I was appointed by a conservative president. It should not come as a shock that I was conservative.” He went on to suggest that the qualifications for the court should be scholarship, experience, fair-mindedness, and temperament—not politics. When one party wins an election, their nominees to the bench are reflective of that party’s predisposition. I will stipulate that Bork being, well, “borked” wasn’t a fine hour for the Democrats. Both parties share the blame. Mr. McConnell took power to an art form, extending this to the Supreme Court nominees and I have little objection to that. What’s good for the goose is good for the gander. But then he did something that defies good faith and fair dealing. Mr. McConnell decided that a president should not be permitted to nominate a supreme court justice in their final year in office and denied now-Attorney General Merrick Garland of even being considered for a confirmation vote. The argument was that the Senate would not exercise its legal responsibility under the Constitution through some notion that “the people should decide” by their vote in the upcoming presidential election—eight months later. That was bad. Really bad. It spoke to what Mr. McConnell calls “scorched earth.” But then, as if that weren’t enough, he, Senator Graham (who said previously he would never vote to confirm a justice in the final year of a term), and others did an about-face and decided to expedite President Trump’s final nominee to the high court, confirming that nominee, Justice Barrett, just eight days before that election. Let’s be clear. Mr. McConnell likes certain rules when they favor his objectives and rails on and on about comity and amity and the great traditions of the Senate when things aren’t going his way. It’s time for majority rule. Either lower the number for cloture and require the obstructionists to babble aimlessly on the floor or just get rid of the silly rule entirely. The earth already is scorched. Our roads and bridges are in disrepair. Our tax system is broken. And our fellow citizens in the District of Columbia are denied representation in Congress. These things require action and it should only require a majority vote to make it happen. Remember that inaction is an action in and of itself. By allowing inaction, the Senate is furthering the political interests of the minority party (i.e., no change at all, even if warranted). If one must choose between minority rule and majority rule, I’ll take the majority every time. REMEMBERING PAPA BILL As I’ve written, we try to pepper our Passover seder with different concepts and interactive moments. A few years ago, I posed the question to those assembled: “If you had to leave your home in a hurry, knowing you might wander in the desert for years, what would you take?” Answers ranged from books to personal mementos to treasured family photo albums to more practical forms of exchange that might come in handy, like jewelry. When it got to my father, he didn’t miss a beat and exclaimed, “I’d pack up my ass and get the hell out of there!” He didn’t need much. Ah, that’s the Bill I remember—the practical poet! As I remember my father and all he gave me with which to face life, I am reminded of this Seamus Heaney quote: “Dangerous pavements. But I face the ice this year With my father’s stick.” Have a great day, Glenn