It's up to Democrats to save the filibuster

The Democrats cannot prevent Neil Gorsuch from taking his place on the Supreme Court, but how they decide to handle their opposition to his nomination will make or break the Senate’s filibuster tradition. If the filibuster, which has endured in the Senate for more than a century, is eliminated, it will be nobody’s fault, but their own.

The filibuster dates back to at least the 1840s. The early tradition of the Senate was to allow unlimited debate on legislation. In 1917, Senate rules were changed to allow for a cloture vote, in which a two-thirds majority of senators could stop a filibuster. The requirement was later lowered further to the current 60 votes.

The history of the filibuster of judicial nominees is more recent. According to the Washington Post, the filibuster of qualified judicial nominees began when Democrats held up George W. Bush’s nomination of Miguel Estrada to the Court of Appeals in 2003. After seven failed cloture votes, Estrada withdrew his name from consideration and a new Democrat tactic was born.

In 2005, a bipartisan group of Senators called the “Gang of Fourteen,” many of whom are no longer in office, compromised to allow a vote on several of President Bush’s nominees and averted a threat by Majority Leader Bill Frist (R-Tenn.) to end the filibuster for nominees. Senator John McCain (R-Ariz.) told CNN that the group agreed that filibusters of nominees would only be used in “extraordinary circumstances” and would “try to do everything in our power to prevent filibusters in the future.”

When Republicans used the tactic under President Obama in 2013, Majority Leader Harry Reid (D-Nev.) changed Senate rules to eliminate the filibuster of most presidential nominees, but left it intact for Supreme Court nominees. “The American people believe the Senate is broken, and I believe the American people are right,” Reid told the Washington Post at the time, “It’s time to get the Senate working again.”

At the same time, Reid also changed Senate rules to require only a simple majority vote to amend Senate rules rather than the traditional two-thirds vote required for major rule changes. Reid’s precedent makes it much easier to Republicans to change the Senate rules today.

Fast forward to 2017 and Democrats are threatening to filibuster another well qualified nominee. The Democrats do not have enough votes to defeat the Gorsuch nomination, but they do have enough votes to block the Senate from voting on him under current filibuster rules.

A Democrat filibuster would be an exercise in futility that would change the Senate forever.

Appearing on Fox News, Majority Leader Mitch McConnell (R-Ky.) said on Sunday, “We're going to confirm Judge Gorsuch this week.” Implicit in the remark is the promise that there will be a vote on the Gorsuch nomination, regardless of whether Democrats attempt a filibuster or not. McConnell will invoke the so-called “nuclear option” and change Senate rules, which require now only a simple majority vote to eliminate the filibuster for Supreme Court nominees.

For years, the policy of the United States has been one of “no first use” of nuclear weapons. Harry Reid’s decision to invoke the nuclear option in 2013 shows why. It becomes easier for other countries to use their own nuclear option when the situation warrants.

By eliminating the filibuster for most nominees, Harry Reid made it likely that the filibuster would be erased for the few exceptions that remained as well. There is little doubt among Republicans that, if the roles were reversed, the Democrats would eliminate the filibuster because they have already done so. McConnell and the Republicans feel that they have nothing to lose.

Some conservatives were even ready to trash the filibuster while Barack Obama was president in order to end the Democrat filibuster of Obamacare repeal legislation. At the time, this would have been pointless since President Obama would have vetoed the bill anyway.

If the filibuster is eliminated for judicial nominees, the next step in the escalation will be to eliminate it entirely. If this happens, the Senate will lose a valuable protection against a tyranny by the majority.

The Democrats can prevent this and save the filibuster simply by being reasonable. They should admit defeat and allow a vote on Judge Gorsuch’s appointment. They can vote “no” to appease their constituents and assuage their consciences.

In the end, a vote will be held and Judge Gorsuch will be confirmed. The only question is whether the filibuster will be a casualty of the confirmation fight. 

Originally published on The Resurgent

Filibuster's days may be numbered

Many are assessing the future after last night’s Trump victory, an outcome that few expected. There are many questions about the future and the upcoming Trump Administration. One question involves the future of the filibuster.

The Senate filibuster rule requires a majority cloture vote to end debate on legislation before it can take a final vote on a bill. The filibuster rule is not specified in the Constitution but has been a part of Senate rules since 1841 according to the Senate website. In 1917, the Senate passed a rule requiring a two-thirds vote for cloture to end debate on a bill. The requirement was reduced to three-fifths, 60 votes, in 1975. Majority Leader Harry Reid ended the filibuster on many presidential appointments in 2013.

Since Republicans took control of the Senate in 2014, Democrats have successfully used the filibuster rule to deny cloture on a number of Republican bills. There were 54 Republicans in the Senate, six short of the 60 vote requirement to end debate and move a bill forward. This Democratic road block led many conservatives to call for an end to the filibuster. Under President Obama, this would have been a strategic error because Republicans still would not have had the votes to override President Obama’s veto.

In 2017, when Donald Trump becomes president, he will have a Republican majority in both the House of Representatives and the Senate. Even with those majorities, Democrats still retain enough votes to block cloture on Republican bills. The road block will still exist.

To avoid Democrats bottling up legislation, the new Republican Senate may invoke the “nuclear option” and choose to eliminate or weaken the filibuster rules. Since the filibuster is not specified in the Constitution, it can be easily changed at the beginning of a Senate session by the majority party.

Democrats had already signaled a change to the filibuster if Hillary Clinton had won the election. Sen. Harry Reid (D-Nev.) told Talking Points Memo, “If the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told 'em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.”

Opinions of the filibuster vary depending on which party is in power. The filibuster protects the minority party so Democrats, who were critical of Republican use of the filibuster, can be expected to defend it fiercely with Republicans in the majority. The reverse is also likely to be true.

After six years of Democrat obstructionism in Congress, the temptation to eliminate the filibuster may be too much for Republicans to ignore. With a broad mandate and angry Republicans eager to start rolling back President Obama’s legacy, the filibuster’s days are likely numbered. 

Originally published in The Resurgent

Why the Republicans couldn’t defund DHS

It’s not lack of principles, stupid!

The failure of the Republican majority in Congress to defund President Obama’s executive amnesty this week has once again engendered bitterness among some conservatives toward the party’s leadership. Accusations that John Boehner and Mitch McConnell caved to Obama’s pressure are widespread, but the true cause of the failure to can be found within Senate traditions and the Constitution itself. The Constitution may also provide the ultimate solution to Obama’s executive overreach.

Because the authors of the Constitution distrusted a strong central government, they made it difficult to enact new laws. Because the framers worried that the majority might tyrannize a minority, they gave the president veto power over laws passed by Congress and the courts the right to strike down laws judged to be unconstitutional. Democratic filibusters must also be considered by Republican leaders, but it is the presidential veto that holds the greatest threat to the Republican agenda.

Cloture, filibusters, and vetoes! Oh, my!

Under the Constitution, the House and Senate pass bills with a simple majority vote, but the Senate has traditionally allowed unlimited debate before a vote. The strategy of a filibuster, a prolonged speech to prevent a vote, has long been used by minority senators to prevent those in the majority from passing legislation. Filibusters no longer require longwinded speechmaking. Under current Senate rules, to end debate on a bill, senators must first vote for cloture. According to the Senate website, the cloture rule was intended to give senators a means to overcome filibusters and dates back to the Woodrow Wilson Administration. Originally, the rule required a two-thirds vote to end debate on bill, but this was changed to three-fifths, 60 votes, in 1975. A filibuster is now merely the inability of the majority party to get enough votes for cloture.

What the cloture rule means to conservatives now is that, since Republicans hold 54 Senate seats, they will need at least six Democratic votes to invoke cloture and bring bills to a vote. If the Democrats remain united, they can deny the Republicans the ability to bring their agenda to a Senate vote, in which case it can never become law. This was the case with the attempt to defund DHS.

Bills that are passed by both the House and Senate face another constitutional hurdle before becoming law. According to the Constitution, bills passed by Congress then go to the president where they can become law in one of two ways. First, the president can sign the bill and it immediately becomes law. Second, the president can do nothing and the bill will become law in 10 days as long as Congress remains in session.

The president can also reject, or veto, the bill. For a regular veto, the president sends the bill back to Congress with a message describing why the bill was vetoed, as in President Obama’s veto of the Keystone pipeline. More rare is the pocket veto. If Congress adjourns before the 10 days is up and the president fails to sign the bill, the bill never becomes law.

The drive to override

Congress can override a presidential veto. When the president returns the bill to Congress, the bill can still be passed without the president’s approval. Overriding a veto requires a two-thirds vote of the members present. A bill that is subject to a pocket veto simply dies and cannot be overridden. It must be debated and passed again by the next Congress.

In the current Congress, overriding a veto would be difficult in spite of the historic Republican majority. Assuming all congressmen were present, a two-thirds majority would require 67 Senate votes and 288 House votes. This means that 13 Democratic senators and 41 Democratic representatives would have to vote against the president even if all Republicans were united. The Congressional Research Service reports that between 1789 and 2004 only 106 of 1,484 regular vetoes were successfully overridden, a seven percent success rate.

Most of President Obama’s signature pieces of legislation were passed in his first two years when the Democrats held control of both houses of Congress, but Democrats in 2009 through 2010 also had an important advantage that today’s Republicans lack: a president who would sign their legislation into law. As Republicans try to roll back Obamacare and other Obama-era legislation, they have the opposite situation, a president who will viciously wield the veto pen to preserve his legacy. Barring a major break between the Democrats in Congress and President Obama, it is unlikely that any presidential vetoes will be overridden.

Flank attacks

Two strategies have been floated by Republicans to outflank the Democratic obstruction. Rep. Mo Brooks (R-Ala.) recently called on Republican leaders to invoke the “nuclear option” and totally eliminate the filibuster. In 2013, Senate Majority Leader Harry Reid (D-Nev.) changed the rules to eliminate the filibuster for the confirmation of presidential appointments. According to the Washington Post, the filibuster still stands for bills, but not for votes on presidential nominees.

Eliminating the filibuster would allow Republicans to pass the bill in the Senate, but the plan has two major flaws. First, the larger hurdle, President Obama’s veto, would remain so any successes would be short-lived. Second, the Republicans will one day need the filibuster themselves since it is unlikely that any Senate majority will ever be permanent.

A second strategy would be to use a budget reconciliation, the tool used by Harry Reid to pass Obamacare, to pass conservative legislation. As former New Hampshire senator Judd Gregg explained in the Wall St. Journal, a budget reconciliation requires only 51 votes but the circumstances where it can be used are extremely limited. Additionally, the final budget bill would still be subject to a presidential veto.

The Keystone model for success

Sheer numbers and constitutional processes make it unlikely that a direct frontal assault against President Obama will work. A more likely strategy is for the Republicans in Congress to seek areas where they can find common ground with moderate Democrats as they did with the Keystone pipeline. Winning even a few Democratic votes would force Obama to either use his veto or allow the bill to become law, putting pressure squarely on the president.

While it is possible – or even likely – that President Obama will veto a bipartisan bill, doing so would change the dynamic in Washington. Since Republicans took control of the House in 2011, the Democrats have derided them as obstructionists who do nothing more than say “no.” When President Obama uses his veto power or Senate Democrats use the filibuster, it will be the president who is obstructing the will of the people.

The Republicans made a massive strategic blunder in the battle over DHS funding when House Republicans chose not to focus solely on President Obama’s illegal amnesty, a tactic that might have won some Democratic allies. Instead, the Wall St. Journal notes that the bill included several amendments to repeal Mr. Obama’s less controversial moves on immigration going all the way back to 2011. As a result, the Democrats were united and a few Republicans even voted against the bill.

The last line of defense

Further, as Karl Rove notes, the decision of a Texas federal court judge blocking Obama’s amnesty removed the need to defund the DHS in the first place. The courts have at least temporarily stopped Obama’s executive action where Congress could not. The possibility remains that the injunction will be made permanent and the president will suffer an embarrassing legal defeat.

Although the courts have been weakened by the appointment of judicial activists to the bench, including four to the Supreme Court, the judicial power to declare Obama’s actions unconstitutional is the best hope. The potential threat to Obama’s agenda may be why a Rasmussen poll recently found that 43 percent of Democrats feel that Obama should be able to ignore the courts.

While the election has not given Republicans a carte blanche to impose their policies and reverse Obama’s, it has given them a far stronger hand than they previously held. Republicans must decide whether to squander this advantage on a pointless and unwinnable fight or whether to build a bipartisan majority that can actually accomplish the work of the people.

Read the full article on Examiner.com

Georgia Dems split over tax compromise

Sanford Bishop

A political firestorm has erupted among Democrats since President Obama announced a deal with Republicans to extend the low Bush-era tax rates.  It seems possible that President Obama negotiated without the input of Democratic congressional leaders, expecting them to follow his lead.

Lame duck House Speaker Nancy Pelosi is unhappy with several provisions and has not committed to pushing the bill through the House.  Senate Majority Leader Harry Reid said the compromise was “something that's not done yet. We're going to have to do some more work.”  This indicates that left-wing Democrats may hold the compromise hostage (to use President Obama’s metaphor) to extract more concessions from the Republicans.

For some the rhetoric was even more heated.  Senator Mary Landrieu called the extension of tax cuts for the wealthy “morally corrupt” and “nonsensical.”  Senator Claire McCaskill said, “If they think it's okay to raise taxes for the embattled middle class because they're gonna pout if we don't give more money to millionaires, it really is time for the people of America to take up pitchforks.”  Apparently Senator McCaskill doesn’t realize that, after last month’s election, if the American people take up pitchforks, it will more than likely be to come after the Democrats.

Much of the Democratic opposition seems to stem from the perception that the deal is a new tax break for the rich or that taxes for the poor are subsidizing the wealthy.  Nothing could be further from the truth. 

In the real world, the current income tax rates, enacted during the Bush-era, are set to expire at the end of this year.  If that happens, taxes will increase for all US taxpayers.  On your first paycheck for 2011, you will take home less money than you did in 2010 because of increased withholding.  If the compromise passes, the rates will remain effective for another two years.  No one will pay a lower rate than they are already paying.

The estate (death) tax provision in the compromise is also giving many liberals heartburn.  The estate tax is set to jump to 55% from nothing this year.  The compromise would restore the estate tax at 35% for estates worth more than $5 million.  Apparently, this is not enough for many liberals.

As I pointed out yesterday, Democratic concerns about the cost of extending Bush’s tax rates are a hypocritical considering the spending spree that they have been on for the past 2-4 years.  Democratic calculations fail to incorporate Hauser’s Law, which points out that government revenue remain stable at 19% of GDP regardless of tax rates.  This is because the wealthy put their money into tax shelters when tax rates rise.  With more money removed from the economy (a higher percentage going to government and more real dollars sitting in shelters), the economy shrinks.  The higher tax rates actually bring in fewer real dollars than projected.  This means that the tax increases would bring in less revenue than projected and, conversely, that keeping rates low would cost less than projected.

Of Georgia’s six congressional Democrats, only Sanford Bishop has made a statement supporting the compromise.  A spokesman in John Lewis’ office states that Rep. Lewis is opposed to the deal, even though the favors the extension of unemployment compensation.

Two of the representatives (Hank Johnson and John Barrow) have not yet decided on an official position.  A spokesperson for Jim Marshall said that the congressman had not addressed the compromise, but supported extending the Bush tax rates.  A spokesman for David Scott refused to reveal Rep. Scott’s position on the issue.

Of the four uncommitted congressional Democrats, three (David Scott, John Barrow, and Jim Marshall) are members of the moderate Blue Dog Coalition.  John Barrow and Jim Marshall (as well as Sanford Bishop) joined forty-seven Democrats in signing a letter to Nancy Pelosi last September supporting an extension of the current tax rates.

It is likely that John Barrow and Jim Marshall will join Sanford Bishop in supporting the compromise.  It is equally likely that Hank Johnson (who gained fame for his belief that Guam might “tip over”) will join John Lewis in opposing it.  David Scott, who is a Blue Dog and represents several conservative counties, could go either way.  My prediction is that he will oppose the deal.

On the Republican side, only Senators Jim DeMint and George Voinovich have said that they will vote against the measure.  That may change in days to come as such notables as Sarah Palin and Rand Paul question the deficit spending in the deal.  Members of Georgia’s Republican delegation have not voiced opposition.

If the deal fails to pass, it is likely that the newly strengthened Republicans can engineer an extension to the current tax rates next year.  However, that would mean that people will be taking home less money in the first weeks of the new year.  It would also leave Democrats to explain to the American people why allowing taxpayers to keep their own money is considered a giveaway.

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