Filibuster Folly

On Thursday, Majority Leader McConnell invoked the 'nuclear option' - also called the Reid Rule - to rewrite senate rules to overcome the filibuster of Judge Neil Gorsuch.  When put to a vote, he won confirmation by 54-45.  The Republicans have a 52-48 majority in the Senate.  This incident is supposedly evidence that Republicans are wrecking the traditions of the Senate.  Hmm.

 

In 1991, the Democrats held a majority of 55 to 45 seats in the Senate.  In that same year, Clarence Thomas was confirmed to the Supreme Court by a vote of 52-48.  By current standards, Thomas was far outside the 'mainstream' of judicial thought.  How did he get confirmed?

For the entire history of the Senate, judicial nominations were not considered to be subject to the filibuster with the possible exception of Abe Fortas who had some ethics issues that sank his elevation from a Supreme Court Justice to Chief Justice.  However, in 2003, the Democrats decided to filibuster judicial nominees.  They used the filibuster to defeat about ten of George W. Bush's judicial nominees.  This was payback for when the Republican-controlled Senate had bottled several times that many Clinton nominees in committee, never even allowing them to come to a floor vote.  But then the Republicans were getting payback for the smear job against Thomas and the 'borking' of Robert Bork.

 

This growing tit for tat exercise first saw some rollback when the Democrats again took control of the Senate and got sick of Republicans using the filibuster against Obama's nominees.  Though the Republicans had flirted with the idea of a nuclear option when they controlled the Senate, the Democrats used it.  The rules were rewritten so that only Supreme Court nominees could be filibustered.  Now the Republicans have completed the process by removing that last case and returning the Advice & Consent function back to where it was prior to 2003.  Oh the humanity!

 

The filibuster should be returned to its pre-1970 status where a senator had to speak for hours on end to hold up legislation.  Why have a cloture vote to end debate when no one is debating?  It is amazing how much use the filibuster has seen in the wake of that rule.

Ending the Filibuster?

Senator Schumer has announced his intention to filibuster Judge Neil Gorsuch's nomination to the Supreme Court.  This will trigger the Reid option where the Republicans will change the rules in much the way the Harry Reid did when the Democrats controlled the Senate and approve Gorsuch on a 52 to 48 vote.  Interestingly, Gorsuch was unanimously approved by the Senate for his current post on the Tenth Circuit.  Repeatedly, Gorsuch has said that his job is to apply the laws that Congress passed and Senator Schumer finds that to be a conservative ideology.

If McConnell has a spine (questionable), the Reid option will forever nix the filibuster on nominees.  As noted in a previous blog, I hold that nominees whose term will exceed that of the president who nominates them should meet a higher bar but those who leave with him should be approved by a simple majority.  Sadly, the parties don't trust each other enough to make that deal.

 

As the Senate has just become another House of Representatives who just have longer terms, the filibuster is obsolete.  Senators represent their party rather than their state government.  Where senators once viewed the state assembly and governor as their superiors, now they look down upon them as inferiors.  Rightly so under the current election scheme.  In fact, since senators are popularly elected, Democratic senators represent 177 million people while Republican senators only represent 143 million people.  The Independents (Bernie Sanders and Angus King) represent a million people but caucus with the Democrats.  In the 5 most populous states, Democrats outnumber Republicans by 7 to 3.  In the 5 least populous states, that reverses with Republicans having the 7 to 3 majority.

 

It has been a century since the 17th Amendment broke the Senate.  The traditions that had been established beforehand had kept the Senate from going off the rails immediately but those traditions have been chipped away.  The state governments can't keep them in check and the voters have little interest in doing so.  Repeal the 17th Amendment and money will flow back to the states and the federal government will soon busy itself with its enumerated powers.

 

In the meantime, it's time to continue the demolition of the filibuster that Senator Harry Reid started.  After ending it for nominations, it will start getting chipped away for legislation.  It's just a matter of time.

Getting Rid of Secretary DeVos

Betsy DeVos won confirmation today on the barest of margins.  In fact, prior to Harry Reid's nixing the filibuster, there is no way she could have been confirmed.  One must always consider that the other side is going to benefit from such innovations.  Ms. DeVos is noted for championing charter schools and vouchers as an alternative to the demonstrably mediocre public school system.  This is a threat to teachers' unions throughout the country.  With all efforts to stop her from getting the job having failed, maybe now is the time to really go nuclear: Abolish the Department of Education.

Today, Thomas Massie of Kentucky proposed a bill that would shutter the Department of Education on December 31, 2018.  Created in 1980, US students have seen gains in math but losses in verbal skills.  SAT scores were 502/492 when DOE began and rose all the way to 494/508.  That's below the 1972 scores of 530/509, which predate DOE.  It is a money pit, like most federal departments.  Though the intentions were great, the results don't justify the cost.  Let's close up shop and say good bye to Secretary DeVos!  I approve this method of removing Ms. DeVos from government.

Unopposed?

Throughout the campaign season, there was a steady and growing fear that Donald Trump was the American Hitler, a dictator who would be elected and then impose some form of fascist rule in which he was President for Life (kind of like the much mourned Fidel Castro).  Such fears came from those on the left and those on the right.  At each new claim, I rolled my eyes and sighed because Trump was going to have more opposition than any president in living memory.  The majority of the media were cheerleading for Hillary and hammering Trump.  The Democrats, who have always played hardball with Republicans, would ally with their friends in the media to pummel a President Trump.  Furthermore, elite conservative pundits were so opposed to Trump as to call for Hillary's election.  Even the Republican Party only offered support begrudgingly, often with codicils.  Fresh off a real Electoral Landslide, Obama had the media and both houses of Congress on his side and yet didn't get much done.  How would Trump get more done with considerably less support?  The growing panic, which continues today, perplexed me.  But now I see a potential flaw in my reasoning.

 

The media has spent a considerable amount of time since the election beclowning itself.  It's anti-Trump bias has overwhelmed their sense of solid reporting.  The Trump Dossier with the ludicrous golden shower story is only the most egregious.  The anti-Trump attitude is so strong that they jump at stupid stuff.  Trump yells squirrel and they run off like mindless dogs, giving him peace and quiet to consider the latest executive order.  Do they really think Trump cares about the crowd size at the inauguration?  Whether he does or doesn't, it provides an empty story that harms the prestige of the press more than it does Trump.  The media cannot currently influence Trump supporters and their ranting only makes Trump foes make fools of themselves (e.g. Madonna, Ashley Judd, Shia Lebouf).  Tired of the lapdog media that had nothing but praise for Obama, I was looking forward to the return of an attack dog media.  Instead, there is the stupid media that keeps chasing the squirrel.  Sigh.

 

Then there are the Democrats.  Thanks to strong support from the media, the Democrats have always been able to fight tooth and nail without a constant barrage of demands for bipartisanship.  Bipartisan has long meant Republicans agreeing to Democrat policies (e.g. John McCain) while partisanship is when Republicans actually try to implement their agenda.  With trust in the media at an all time low, the Democrats find themselves on a somewhat more even field.  Years of being trounced in midterm elections has convinced them to stick with the same stable of leaders who led them to this cul-de-sac.  Worse, they erased the power of the Senate minority party to resist the majority.  With the filibuster declawed, the Republicans can mostly pass their agenda with a simple majority vote, just like in the House.  Still worse, the Democrats face a difficult election map for the Senate in 2018, meaning they are in big trouble.  They are down to rhetoric as a means of opposition and they have only themselves to blame.  Well, Harry Reid can shoulder most of it.

 

The Republicans are still spineless.  While Democrats practice party loyalty and rarely have a 'maverick' who trashes fellow Democrats, the Republicans eagerly eat their own.  John McCain was a media star who appeared regularly on Hard Ball where he attacked the policies of his party.  Oh, the media loved him until he was the nominee vs. a Democrat.  Then he was the latest coming of Hitler.  With this history of attacking and opposing allies, Trump was an ideal target for such opposition from the beginning.  But the Republicans are still spineless.  It Trump can get enough voters (5 or so) to call Congress, the Republican will fold.  The history of the Republican party is to fold unless they have a strong leader (Reagan, Gingrich, etc.).  Trump may be an irresistible force to the backbone-impaired.

 

That leaves the Never Trump crowd who supported the embarrassing candidacy of Egg McMuffin or allied with Hillary.  They have hamstrung themselves with regard to anyone who voted for Trump.  One can admire the principles for which they stood while also recognizing that it was a political blunder.  If the guy you hate wins, you want to still be in the tent so your voice will be heard.  By leaving the tent, they abandoned much of the base that remained in the tent and lost much of the influence they had.

 

As time passes, all of these groups will - one hopes - adapt and prove to be effective bulwarks against authoritarian impulses from Trump.  Right now, they are all almost useless.  If Trump wants to prove his detractors right, now is the time.  The steamroller will never have a better opportunity.

The Nuclear Option

Back when the Republicans threatened the Nuclear Option of changing Senate rules so that a simple majority could confirm nominees, Senators Barack Obama, Joe Biden, and Harry Reid were all in strenuous opposition.  Of course, they were the minority then.  The nuclear option was not exercised and the filibuster remained.  Today, the filibuster has been tossed aside.  Sure, they said it only applies to judicial (except for the Supreme Court) and executive nominations but the precedent is now set.  If the majority wants to change the rules to get its way, the majority shall change the rules.  In other words, there are no rules.

The Senate is meant to put the brakes on the more volatile House.  It is supposed to preserve the rights of the minority, which is a large part of why the supermajority filibuster exists.  The Senate has made a huge leap to being just another House of Representatives.  As I've said before, we need to repeal the 17th Amendment so that Senators are chosen by the state legislatures rather than the citizens.  Then they would protect the independence of the state rather than weakening it.  However, that is a tough sell.

As for the effects, I am ambivalent.  I think a president should get the nominees of his choice in most cases, especially those that expire with his term.  Nominations that outlive his presidency (such as judges) deserve greater scrutiny.  However, since this simple majority will apply to Republican nominees in the future, it comes out even.  Likely to get more extreme nominees this way.  Democrats will rue the day when they are no longer the majority.

Obsession

Majority Leader Harry Reid accused the Republicans of being 'obsessed' by Obamacare and couldn't figure out why.  Let's have a look at the history of big and controversial legislation.

The Civil Rights Act of 1964 - now widely credited solely to the Democratic Party - was passed with 199 Democratic votes (65% of the Democrats) and 166 Republicans (80%).  Not so controversial when you look at the votes but viewed so today.  Anyway, very bipartisan.

The Voting Rights Act of 1965 was even more lopsided with 400 votes in favor vs. only 104 opposed, getting the majority of each party.

The Economic Opportunity Act of 1964 (part of LBJ's War on Poverty) passed with 32 Republican votes and 254 Democrat votes.  Clearly not a favorite of Republicans but still able to coax about a sixth of them to vote in favor.

No Child Left Behind (2001) passed with huge bipartisan support, 473 to 53.

Medicare Part D (2003) passed by a very narrow margin, but enjoyed bipartisan support.

The Authorization for Military Force in Afghanistan (2001) - which has become extremely controversial since it was approved - had almost unanimous support, passing 98 - 0 in the Senate and with only 1 vote in opposition (Barbara Lee of CA) in the House.

The Authorization for the Iraq War (2003) got 263 Republican votes and 103 Democrat votes in favor.  Of course, not long after this, most of the Democrats denounced their votes with claims of being 'lied to' by the administration.  Nonetheless, this now hugely controversial vote enjoyed considerable bipartisan support.

The Affordable Care Act (2010) got 279 Democrat votes and 0 Republican votes.  Also, not to be overlooked, it had 34 Democrats voting against it.  The opposition to the bill was bipartisan but not the support.  Here is the most consequential legislation in decades and yet it was passed on an entirely partisan vote.  Why is anyone surprised that the party that voted 100% in opposition would be so determined to undermine it?

The President and the Democrats continually say that the Supreme Court upheld the law.  Yes, but the President has dramatically altered what the Supreme Court approved.  He has delayed the Employer Mandate (without benefit of Congressional Legislation), the cap on benefits, subsidy based on income, and about half the deadlines.  The President has offered more than 2000 waivers from the law.  He has provided for the Congress to get health care subsidies not available to the common folk, effectively exempting them from the law.  The law did not provide for the Federal Government to setup Exchanges but they've done it anyway because half the states declined to do so!  This is not the law the Congress passed or the Supreme Court found Constitutional.  Presidents do not get to rewrite laws to their liking.  Considering this, why is anyone surprised that some are adamantly opposed?  This is not the rule of law.

Tax Returns

Senator Harry Reid is still claiming that Mitt Romney has not paid taxes for ten years.  He says he has a credible source, an investor from Bain Capital.  I have some questions.  First, how would a Bain investor or even and employee know whether or not Romney had filed taxes?  The only people who should know are the Romney's, their accountant, and the IRS.  Second, why doesn't Senator Reid put this investor in touch with the IRS?  I'm sure the IRS would be eager to audit a multi-millionaire who didn't pay taxes for ten years.  If he did skip paying taxes for 10 years, how did they miss that?  Senator Reid has inadvertently made an argument for getting rid of an apparently incompetent agency that didn't notice the long gap in tax returns.

Since we are on the topic of releasing tax returns, word is out that Harry Reid became a multi-millionaire through shady land deals in Nevada while he has been Senator.  Clearly, Senator Reid needs to answer this rumor.  He has not released ANY tax returns.

One Baseless Claim Deserves Another

The majority leader said he was told that Romney "didn't pay any taxes for 10 years" by someone who invested with Bain Capital, Romney's former private equity firm. But Reid hasn't named names, and went so far as to admit that he didn't know if his information was accurate.

The Huffington Post

That's just great.  Harry Reid has just tossed a baseless allegation at Romney with the goal of making Romney disprove it by releasing his taxes.  In short, Romney is guilty until he proves his innocence.

Two can play that game.  I say that Obama had a GPA of only 2.2 while attending Columbia and failed Constitutional Law at Harvard.  Obviously, he's guilty unless he releases his transcripts.  The evidence for my claim is just as solid as for Reid's claim.

It is said that the first person to resort to name-calling has lost the argument.  So far, the Obama campaign or its surrogates have accused Romney of being a bully (incident where he cut a fellow student's hair when he was a teenager), a felon (supposedly misreporting when he departed Bain), a wimp (he's dodging the press and hiding his tax returns), and a tax cheat (Harry Reid's current claim).  The Obama campaign is throwing accusations and seeing what sticks.

The attacks on Romney are meant to deflect from the President's record.  Obama is not heralding the Stimulus or Obamacare.  He's not campaigning on bailouts.  The unemployment rate is worse today than when he was inaugurated.  The debt has grown by more than $5 trillion.  He did kill Osama bin Laden.  The record is not impressive.  If he can't win by positive accomplishments then he must resort to disqualifying his opponent.  Thus we have the long line of attacks.

Obama is in a very precarious position.  Europe is on the brink and could shove the world economy into recession.  The US economy is slowing down and threatening to dip back into recession.  The military cuts will provoke layoff letters the week before the election.  The most loyal Democratic constituency, African-Americans, is angry over his support for gay marriage.  Another loyal constituency, Jews, are not pleased by his relations with Israel.  In many ways, he has surprisingly little control over his fate, which should tell us something.