The Filibuster's Days May Be Numbered

The filibuster may be dying the death of a thousand cuts.

After Majority Leader Harry Reid implemented the nuclear option to eliminate the filibuster for cabinet appointees and judicial nominees below the Supreme Court in 2013, Mitch McConnell, leader of the Republican minority at the time, warned, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”

McConnell’s warning was prescient. It was only four years later that Republicans used Reid’s rules to confirm Donald Trump’s cabinet. Then McConnell dropped his own nuke and removed the filibuster for Supreme Court nominees, allowing Republicans to confirm Neal Gorsuch and Brett Kavanaugh over Democratic objections. Now McConnell is about to go nuclear again.

American military strategists have long embraced a policy of no-first-use when it comes to nuclear weapons. The situation in the Senate is an example of why. Once one nuke is dropped, it becomes easier and easier for others to launch their own nuclear weapons at more and more targets. The first use of a nuclear weapon expands the Overton window to where usage of more nukes is acceptable.

NBC News reports that Mr. McConnell may drop his next nuke as early as today. Yesterday, in a party-line vote, the Senate rejected a change to rules that would have limited debate on cabinet appointees and district-level judicial nominees to two hours from the current 30. This would make it easier for the Senate to confirm more of President Trump’s judicial nominees. Even though the Senate required 60 votes to make the change, McConnell has the ability to use procedural tactics to make the change with only a simple majority.

Burgess Everett writes in Politico that each time the filibuster is weakened unilaterally by one party, it becomes more likely that the measure will eventually be totally eradicated. Already, members of both parties are claiming that the other wants to eliminate the filibuster so why not take pre-emptive steps and do it to their own advantage?

“If eliminating the legislative filibuster will serve Sen. McConnell’s purposes, he’ll eliminate it,” said Senate Minority Whip Dick Durbin (D-Ill.). “After what Sen. McConnell has done to this institution, there will be many people who will be putting pressure on us to do the same thing.”

“It’ll go down the road,” Senator Richard Shelby (R-Ala.) said. “If the Democrats take control of the Senate and we’re in a strong minority then they’ll change it immediately.”

President Trump has also made repeated calls to eliminate the filibuster. Mr. McConnell rebuffed those calls as recently as last June, but the majority leader’s repeated weakening of the filibuster whenever it is convenient may be dooming the Senate rule.

The argument against the filibuster is basically that Congress is too divided to compromise. Neither party has enough votes to force its will on the other without convincing a few senators to cross the aisle. While this division is frustrating to party activists, the voters who keep Congress decided seem to prefer stalemate to one-party rule.

Both sides will be to blame for killing the filibuster. Harry Reid uncorked the nuclear genie from his bottle but Republicans have taken the idea and run with it. If Republicans eliminate the filibuster, it will be the GOP that bears the brunt of voter anger for the change.

Regardless of who eventually pulls the trigger to finally eliminate the traditional safeguard for the Senate’s minority, the country will be worse off without the filibuster. The need for 60 votes to advance legislation acts as a speed brake to slow down bad bills. Without the restraining influence of the minority, a bevy of bad ideas could easily become law. National policy could veer wildly from one side of the political spectrum to the other.

While eliminating the filibuster would allow Republicans to fund President Trump’s wall and repeal Obamacare in the short-term, it is very likely that after the 2020 elections the situation will look very different. If Democrats win control of the Senate and the presidency while retaining the House of Representatives, the absence of the filibuster would allow them to defund the wall while, at the same time, passing a veritable liberal wish list that includes gun control, Medicaid-for-all, higher taxes, and who knows what else. Even with a large Republican minority, the Democrats would be unstoppable until after the next election.

It may already be too late to prevent the death of the filibuster, but Mitch McConnell and his Senate Republicans should think very carefully before further weakening the tradition. They may regret it if they do. And they may regret it a lot sooner than they think.

Originally published on The Resurgent

AHCA is best chance to replace Obamacare in our lifetime

The House of Representatives finally passed a bill to gut Obamacare and many conservatives are upset. Admittedly the bill is not full repeal. It is far from perfect. If I was going to write a health care reform plan, the American Health Care Act would not be it. Still, I’m very glad that the House passed the bill and I fervently hope that the Senate moves the legislation forward. Why? Because it is the only health care reform that has any chance of passing.

Many myths have grown up around Obamacare and the Republican repeal and replace effort. Over time, we have forgotten that Obamacare was not passed by a budget reconciliation. “HR 3590, the Patient Protection and Affordable Care Act,” was passed on Christmas Eve 2009 after a cloture vote by 60 Democrats ended a Republican filibuster. It was a traditional bill that requires a traditional bill to repeal.

So, what was the controversy about the budget reconciliation? After Scott Brown (R-Mass.) was elected to the Senate, the Democrats could no longer break Republican filibusters. If the Democrat-controlled House amended the ACA, it would be subject to another cloture vote, which the Democrats would lose. The answer was to have the House pass the bill unchanged and use the budget reconciliation process to pass a second bill, “HR 4872, The Healthcare and Education Reconciliation Act,” by a simple majority vote. This bill was subject to the same limitations that the GOP now faces in passing their own budget reconciliation.

Even though Republicans hold the presidency and control both houses of Congress, they were not granted a blank check by voters. A full repeal would require 60 votes for cloture in the Senate and there are only 52 Republicans. The mathematical problem is obvious.

But what about the 2015 repeal bill that was vetoed by President Obama, you may ask. Republicans didn’t have 60 votes in 2015 either, but they passed a repeal bill then. Why can’t they do it now?

The answer is that the 2015 repeal bill was not a full repeal either. The 2015 bill, was also a reconciliation bill that carried the unwieldy title, “HR 3762 To Provide for Reconciliation Pursuant to Section 2002 of the Concurrent Resolution on the Budget for Fiscal Year 2016.” The text of the bill states in Section 102 that the ACA “is amended,” not repealed.

If the 2015 bill was better that the AHCA of 2017, it is for two reasons. First, there were 54 Republicans in the 114^th Congress where there are only 52 now. The GOP could afford to lose more votes in the Senate in 2015 that it can today.

Second, four Republican senators who voted for the 2015 bill now say that they won’t vote for a bill that does not provide for a phase out of the Medicaid expansion. Sens. Rob Portman (Ohio,) Shelley Moore Capito (W.Va.), Cory Gardner (Colo.) and Lisa Murkowski (Alaska) refuse to back the same bill that they voted for two years ago. Sen. Susan Collins (R-Maine) voted against the 2015 bill and would presumably do so again. Other Republicans are reluctant to repeal the popular provision concerning pre-existing conditions. It is these five senators and House moderates, not the Republican leadership or President Trump that are forcing a more watered-down version of the bill.

Some conservatives suggest that Republicans should get rid of the filibuster to pass a repeal. We wouldn’t need 60 votes then and the Democrats will probably kill it anyway the next time they have a majority, they argue.

The problem with this strategy is that full repeal could not even win a simple majority vote. The five Republican defectors in the Congress and the Tuesday Group of 50 Republican moderates in the House would kill it.

Removing the filibuster would also mean that Democrats would only need simple majorities to replace Republican health care reform with a national single-payer system the next time they control both houses of Congress and the presidency. It would also usher in a host of other bad ideas from gun control to a higher minimum wage to higher taxes to onerous regulations on practically everything. It is true that Democrats might one day choose to remove the filibuster, but it is certain that if Republicans remove it now, for no strategic reason, Democrats will have a field day when they return to power.

What, then, are the options for Republicans on Obamacare? One option is to wait and hope for a filibuster-proof majority. If you favor this option, be aware that the last time that Republicans had a 60-vote majority was the 61^st Congress from 1909 to 1911. It is extremely likely that before the Republicans get a supermajority, Obamacare will implode, health insurance premiums will skyrocket, insurance companies will cancel policies and hell will freeze over. I have little doubt that if Republicans hold out for the perfect, full repeal bill that I will die of old age with Obamacare still intact. (I’m only 45.)

Waiting until 2018 might give the Republicans a few more votes to craft a better compromise. It is also possible that two years into the Trump Administration, voters might deliver a rebuke to Republicans in the form of Democrat majority in either the House or Senate that makes any sort of conservative impossible. In any event, it is doubtful that the numbers would change enough in the GOP’s favor to justify putting off a cornerstone promise of the campaign for two years. The longer Republicans wait to take action, the more entrenched Obamacare will become.

A better option is to take baby steps toward the full repeal of Obamacare starting now with the AHCA. The current bill has the support of moderates as well as the Freedom Caucus and has decent chance of becoming law. While far from ideal, it is a reasonable bill that can hopefully be improved further in its journey through the Senate. Even if it became law in its current form it would mark a vast improvement over Obamacare.

The Republican reform bill should not be viewed as a final step, but as a first step toward total repeal. Without a supermajority, it may take years of nibbling at the edges of Obamacare to fully repeal the behemoth, but conservatives have to start somewhere. The logical place to start is the bill that has the support of the two disparate factions of the GOP. The only bill that has a chance of becoming law.

Conservatives must decide whether it is worth trading a chance to gut Obamacare now to wait for a perfect bill in the distant future. The answer should be obvious. We should not allow the perfect to be the enemy of good and the possible.

Seize the day and start saving American healthcare!

Originally published by The Resurgent

McConnell rejects ending filibuster

President Trump tweeted yesterday morning that voters should “either elect more Republican Senators in 2018 or change the rules now to 51%,” implying that the Senate should go nuclear once again and completely eradicate the filibuster rule. Senate Majority Leader Mitch McConnell (R-Ky.) was quick to respond.

“That will not happen,” McConnell told The Hill and other reporters as he rejected the president’s idea out of hand.

either elect more Republican Senators in 2018 or change the rules now to 51%. Our country needs a good "shutdown" in September to fix mess!

— Donald J. Trump (@realDonaldTrump) May 2, 2017

The filibuster, originally a Dutch term for pirates, goes back to the early days of the Senate per the Senate website. The filibuster was well established by 1841 when Henry Clay (Whig-Ky.) threatened to change Senate rules to allow the majority to vote to end debate. Clay was rebuked by Thomas Hart Benton (Democratic-Republican- Mo.) for his attempt to stifle the Senate’s tradition of unlimited debate.

The Senate did weaken the filibuster in 1917 when adopted Rule 22 which established a cloture vote. A vote of two-thirds of the Senate could end debate on a bill. The filibuster reached its current form in 1975 when the number of votes required for cloture was reduced to 60.

“There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar,” McConnell said, adding that the move would “fundamentally change the way the Senate has worked for a very long time. We're not going to do that.”

Removing the filibuster is tempting for some Republicans due to the slim GOP majority in the Senate. With only 52 Republican senators, at least eight Democrat votes are required for cloture on most bills. The need for cloture is a roadblock to much of the Republican reform agenda. In particular, Democrats are united against the repeal of Obamacare.

Nevertheless, elimination of the filibuster would be a double-edged sword that Republicans may soon regret. Over the past 100 years, the Democrats have controlled the Senate more than Republicans and the filibuster has enabled the GOP to halt Democrat action on many issues from gun control to cap-and-trade to public option health care. Without the filibuster, there would be no fail-safe the next time that Democrats hold a congressional majority.

“The rules have saved us from a lot of really bad policy,” said Senator John Cornyn (R-Texas). “I know we all are into short-term gratification, but it's a real mistake, I think, from a legislative standpoint.”

Senator Orrin Hatch (R-Utah) agreed. “Had we not had the filibuster, this country would have been gone a long time ago, gone straight to socialism,” he said on CNN.

Last month, Senate Republicans eliminated the filibuster for Supreme Court nominees, but a majority of senators say that further rule changes are unlikely. A bipartisan group of 61 senators sent a letter last month to Senate Leaders McConnell and Schumer (D-N.Y.) stating opposition to further changes. The Hill reports that Senators John McCain (R-Ariz.) and Susan Collins (R-Maine) have announced that they would oppose further changes. With two GOP senators already standing against elimination of the filibuster, any further defections would doom the plan.

For now, the filibuster appears safe, but pressure from the conservative base continues to mount and angry voters are urging Republicans to get things done with their majority. As frustration over Democrat obstructionism increases, calls to eliminate the filibuster will likely increase as well. 

Originally published on The Resurgent

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

Congress is the key to stopping Hillary

A major argument for Donald Trump has been that “He’s not a great candidate or a conservative, but we need him to prevent Hillary from picking Supreme Court justices who will gut the Second Amendment.” Given the numerous questionable characters that Trump has chosen to work on his campaign, the idea that he knows how to “hire the best people” is dubious at best. Now, as the “Trump train” goes off the rails three weeks before the election, it is becoming apparent that conservatives need to find an alternative strategy to save the Court and block Hillary. The key to stopping the liberal agenda for the next four years is Congress, specifically the Senate. 

Let’s face it. Depending on Trump to appoint strict constructionists to the Supreme Court was always a long shot. The possibility that Trump might appoint good judges outweighs the certainty that Hillary won’t, Trump supporters argue. If one ignores all the other arguments against Trump, it might even be convincing. Yet as Trump goes rogue on the campaign trail, even that slim possibility seems to be vanishing as a Clinton victory grows more and more likely.

The only certain way to stop Hillary’s agenda before it starts is to make sure that the Republican majority in the Senate is preserved. Many Trump supporters will say that the Republicans in Congress didn’t do much to stop Obama for the past six years. They are wrong. The truth is that Republicans in Congress were very successful at stopping Obama’s legislative agenda.

After the Tea Party wave election of 2010, the Democrats did not pass any major legislation for the next six years. Obama’s landmark laws, the stimulus, the Affordable Care Act and the Dodd-Frank financial reform bill, were passed with Democrat majorities in both houses. Not a single Republican voted for Obamacare or the stimulus.

The Republicans in Congress were remarkably successful at stopping President Obama’s legislative agenda. Obama tried to push through gun control in the wake of the Newtown massacre. Republicans stopped him. They actually cut spending in terms of real dollars in consecutive years for the first time since the administration of Dwight Eisenhower. After the death of Antonin Scalia, Republicans in the Senate tabled President Obama’s nomination of Merrick Garland to fill the vacant seat on the Supreme Court. How much credit did Republicans get for these victories? Approximately zero.

Much of the confusion over the Republican Congress “surrendering” to Obama, as many claim, is the difference between stopping Obama and passing legislation to roll back what Obama has already done. Congress is set up so that it is easier to prevent a bill from becoming a law than to enact a new law. This is particularly true in the Senate.

In the Senate, the first hurdle that a bill must pass to become a law is a cloture vote. Cloture is a gentleman’s filibuster. Rather than speaking for hours on end as they did in the old days, today’s Congressmen can block a bill from coming to a vote by rallying 41 opponents to vote against cloture, or ending the filibuster. Therefore, the 46 Democrats in the Senate could effectively block any Republican bill from ever coming to a vote and that is precisely what they did.

The cloture rule is not part of the Constitution. Senators could decide to eliminate it in favor of a straight majority vote. The problem is that there is an even greater hurdle. If a bill passes both houses of Congress, it still faces a presidential veto. To override a veto requires 67 votes in the Senate. Logically, if a bill can’t pass a cloture vote, the veto can’t be overridden.

When the Republicans blocked Obama legislatively, he began issuing expansive Executive Orders and having regulatory agencies issue rulings with the force of law. Because these tactics bypassed Congress, Republicans could not block them. Stopping these abuses would require passing new laws, but the 54 Republicans could not pass new laws without Democratic support. That reality doesn’t change even with a government shutdown. The situation has effectively been a stalemate with neither side willing to compromise on most issues.

Because of the number of Republican Senate seats up for reelection in swing states this year, it was generally assumed that the Republican majority would be smaller for the next Congress. As recently as a few weeks ago, it looked like Republicans would retain control of the Senate, even if they lost some seats. Then came Trump’s implosion.

Not only have the Trump scandals hurt down ballot Republicans, but Trump and his supporters have attacked his fellow GOP candidates. At this point, it seems increasingly likely that the Democrats will win control of the Senate. Even the large Republican majority in the House may be threatened.

While retaining the House would allow Republicans to block legislation such as gun control measures from becoming law, losing the Senate would mean that Democrats could easily appoint extremist liberal judges to the courts with a simple majority vote. There is no filibuster for most judicial appointees thanks to Sen. Harry Reid’s (D-Nev.) use of the “nuclear option” in 2013. With a Democrat Congress and a Democrat president, the filibuster might be eliminated entirely.

On the other hand, retaining control of the Senate would allow Republicans to stop Hillary’s agenda right out of the gate. Appointments to the Supreme Court could theoretically be blocked until after the 2020 elections, if necessary. The Senate has already shown its willingness to stop bad treaties and liberal legislation in its tracks.

There should be no illusions, however, that Republicans can roll back eight years of Obama under Hillary. Even if they retain a majority, they will almost certainly be weaker, at least until the midterm elections. Historically, the opposition party gains seats in the midterms, but even then there is almost no chance of a 67 vote Republican majority.

While it would be preferable to have a Republican president to help pass conservative reforms, Donald Trump is no conservative and has shown little inclination to work with his party. If Trump becomes president and Republicans lose Congress, he could not be trusted to nominate constructionist judges or veto gun control bills. He cannot be trusted to support religious liberty. There is a high probability that he would act with liberal Democrats like Bernie Sanders to scuttle free trade agreements and military alliances.

With Trump falling to the 30 percent range in many polls and trailing in most swing states, there is little chance of a recovery. Republican funds would be better spent on tossup congressional races to preserve the Republican majority than in attempting to shore up a candidate who is biting the hand that feeds him.

If the choice is between an unreliable President Trump and a Republican Senate that has shown its mettle, I’ll throw in my lot with the congressional Republicans.

Originally published on The Resurgent

Ted Cruz is not ready for prime-time

Ted Cruz was elected as senator from Texas in 2012. Yesterday, after serving two years in the Senate he declared his candidacy for president. After serving only one-third of his Senate term, what has Ted Cruz accomplished to win the support of so many conservatives?

Prior to entering the Senate, Cruz worked on the presidential campaign of George W. Bush and served in the Bush Administration as an associate deputy attorney general and director of policy planning at the Federal Trade Commission. From 2003 through 2008, Cruz served as the solicitor general for the state of Texas. In that role, he argued nine cases before the Supreme Court, winning five and losing four. From 2009 through 2012, Cruz worked at Houston law firm as a corporate lawyer.

Cruz first achieved national notoriety with a September 2013 filibuster as Senate Democrats prepared to strip language defunding Obamacare from a budget bill. Cruz’s 21 hour speech was technically not a filibuster at all. As The Guardian explained, Cruz was not delaying a vote because then-Majority Leader had already scheduled the vote for the following day. Under Senate rules, Cruz was required to yield the floor when the time for the vote arrived. Reid told Politico, “This is not a filibuster. This is an agreement that he and I made that he could talk.” In one exchange with Democrat Dick Durbin during his soliloquy, Cruz tacitly admitted that he understood that Republicans did not have the votes to stop Obamacare.

A few weeks later, Cruz got a second shot of fame as the Republicans adopted the strategy of defunding Obamacare developed by Cruz and Sen. Mike Lee (R-Utah). History will record this strategy as a spectacular failure which resulted in the partial shutdown of the federal government for 16 days in October 2013. Obamacare was implemented on schedule, even as nonessential parts of the government were closed and workers were furloughed. When an agreement was finally reached to reopen the government amid plummeting Republican approval ratings, the Affordable Care Act was unchanged, not as a result of inadequate Republican resolve as Cruz alleged, but as a consequence of 55 Democratic senators outnumbering 45 Republicans.

In February 2014, as Congress faced the decision of whether to raise the federal debt ceiling or allow the government to default, once again it was his Republican colleagues that Cruz singled out for criticism. Once again, even though the outcome was preordained, Cruz took a stand that changed nothing, but hurt his party.

In the debt ceiling negotiations, Cruz insisted on invoking cloture, a real filibuster, that required 60 votes for the bill to pass to avoid a default. Because the Democrats only had 55 votes and because most Republicans did not want the country to default, several Republicans had to make a politically embarrassing and damaging vote to end the Cruz filibuster.

In December 2014, Cruz was at it again. The duo of Cruz and Lee held up a 2015 spending bill to protest President Obama’s executive amnesty. In the end, the spending bill passed and the Obama amnesty stood. The pair only managed to make congressmen come to work for a rare Saturday session and, in the process, allowed Democrats to confirm 23 Obama nominees, including 12 judges, that Republicans had previously blocked.

Cruz’s antics have been popular with the conservative base but have alienated him from other Republicans. He was forced to apologize for his December 2014 strategic error, but persisted in pushing his brinksmanship with the attempt to defund President Obama’s executive amnesty in early 2015, a gambit that failed due to a Democratic filibuster.

In contrast to his high profile battles which were full of sound and fury, but actually signified nothing, Cruz’s one notable senatorial success was achieved with bipartisanship and was largely off the national radar. Govtrack notes that Cruz sponsored two bills that became law. One renamed a post office, but the other, S.2195, denied admission to the United States to any UN representatives who had engaged in espionage or terror against the US. The bill’s support was so broad that it passed without opposition and was signed into law by President Obama in 2014. Sadly, Cruz seems not to have learned from this success and returned to attacking Republicans for not having the votes to impose their will on Democrats.

Cruz is an excellent speaker and much of his support stems from his uncompromising attitude. The problem is that, when the results of his actions are examined, he has hurt his own party far more than he has hurt President Obama and the Democrats. His repeated failed attempts to use the budget to get around the Democratic majority and the Obama veto have detracted from the ability of Republicans to find a strategy that might actually work. It is surprising that Cruz, the constitutional lawyer, continues to pursue the same failed strategy over and over.

A majority of Republican voters seem to realize the damage that Cruz has done. Cruz typically hovers at about three to five percent approval according to Politico. A CBS News poll found Republicans almost evenly split on whether they would support Cruz. The poor showing put Cruz in 10^th place, ahead of only Bobby Jindal. The Real Clear Politics roundup of polls confirms the shallowness of Cruz’s support with an eighth place showing among Republicans and an average of 4.6 percent support. Cruz also does the worst of any Republican polled in head-to-head matchups against Hillary Clinton, losing by double digit margins in every poll according to Real Clear Politics.

In fact, Senator Cruz has united a broad spectrum of conservatives against his candidacy. Jennifer Rubin at the Washington Post writes “Either Cruz is not as smart as some people say, or he has decided to give up on being a serious national Republican in favor of becoming the next Sarah Palin.” Thomas Sowell wrote, “Senator Ted Cruz has not yet reached the point where he can make policy, rather than just make political trouble. But there are already disquieting signs that he is looking out for Ted Cruz — even if that sets back the causes he claims to be serving.” Even Anne Coulter called Cruz “a disaster on illegal immigration.”

Ted Cruz is an inspiring speaker and is very popular among a small contingent of Tea Party Republicans. His tactics are excellent for ginning up his own support among this Tea Party base, but makes it almost impossible for him to gain traction within the party at large. To have a future beyond the Senate, Cruz must find a way to promote himself without further dividing Republicans.

 

Read the full article on Examiner.com

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

Gun control votes may hurt Democrats

Thursday the Senate voted to open debate on a Democratic bill to expand gun control laws. Democrats overcame a filibuster attempt by Republicans that would have prevented the Senate from considering the bill.

The “Safe Communities, Safe Schools Act of 2013” (S.649) is sponsored by Majority Leader Harry Reid (D-Nev.). The vote for cloture on the motion to proceed passed 68-31 with 16 Republicans joining 50 Democrats and the Senate’s two independents. Georgia’s two senators, Saxby Chambliss and Johnny Isakson joined the Republicans voting for cloture.

The vote for cloture does not mean that the bill has passed the Senate. Instead it means that the bill will come before an up or down vote by the Senate. If the bill passes the Senate, it must then be passed by the House of Representatives before it can be signed by President Obama.

While some gun control opponents consider the vote a loss, it will put many Senate Democrats in a difficult position. Twenty Democratic seats in the Senate will be up for reelection in 2014 compared to 13 for Republicans. Of the open Democratic seats, seven are in states that were won by Mitt Romney in the 2012 presidential election (Montana, Alaska, North Carolina, South Dakota, Louisiana, Arkansas, and West Virginia). An additional four seats are in states that were tossups in the presidential election (Virginia, Colorado, New Hampshire, and Iowa). Democratic incumbents in these states will be forced to make an uncomfortable choice between their core liberal supporters and the moderate voters that they depend upon to win elections. The difficult position for Democratic senators is underscored by the fact that the only two Democrats to vote against cloture were Mark Pryor of Arkansas and Mark Begich of Alaska, both of whom are facing reelection.

The architects of the compromise that allowed the bill to reach the floor of the Senate were Pat Toomey (R-Pa.) and Joe Manchin (D-W.V.). Manchin ran a commercial in 2010 touting his endorsement by the NRA. Toomey has an “A” rating from the NRA and has a long pro-gun voting record. Neither Toomey nor Manchin is facing reelection in 2014.

A vote for cloture does not mean that the same senator will vote for the bill. When the bill is voted upon, it will likely receive very few, if any, votes from Republicans. Even Sen. Toomey may well vote against the final bill. Although Senate Democrats could pass the bill with no Republican votes since they hold the majority, it might very well be killed by a lack of support from Democratic senators. If the bill does pass the Senate, its prospects of being passed by the Republican-controlled House are slim.

The vote by 16 Republicans to end the filibuster will expose many of them to harsh criticism from conservatives and Second Amendment supporters, but it is a strategic move that may cause cracks within the Democratic coalition. The strategy may pay off in 2014 if President Obama’s drive for more gun control costs the Democrats control of the Senate.

Originally published on Examiner.com:
http://www.examiner.com/article/gop-gun-control-filibuster-failure-may-hurt-senate-democrats?fb_action_ids=10151426698854790&fb_action_types=og.likes&fb_source=other_multiline&action_object_map=%7B%2210151426698854790%22%3A438910599527791%7D&action_type_map=%7B%2210151426698854790%22%3A%22og.likes%22%7D&action_ref_map=%5B%5D

Obama’s imperial presidency

During the Bush presidency, the president was often accused by the left of acting unilaterally as an “imperial president.” It was charged that President Bush often ignored the will of the people and flouted the law with signing statements, acting more like a king than a president.

While the term has rarely been applied to President Obama, the current president’s actions have often been deserving of it. One of the most egregious examples of President Obama’s disregard for the rule of law and the Constitution was his decision to appoint three new members to the National Labor Relations Board and a head to the new Consumer Financial Protection Bureau last week. Obama styled the appointments as recess appointments although neither the House nor the Senate was in recess.

Article II section 2 clause 3 of the Constitution gives the president the power to fill vacancies that occur while the Senate is in recess. These recess appointments escape the immediate need to be confirmed by the Senate, but expire at the end of the next session of Congress.

Article I section 5 clause 4 states that neither house of Congress can adjourn for more than three days without the consent of the other. This is done by passing a resolution in both the House and the Senate. In this case, there is no disagreement that Congress was not formally recessed since neither the House nor the Senate had passed a resolution to end the session.

President Obama’s claim is that since Congress was not conducting business, he met the constitutional requirement. In the New York Times, White House counsel Kathryn Ruemmler said that “the Senate is functionally in recess,” even though neither house had passed a resolution to end the session as required by the Constitution. In fact, Congress acted on the president’s payroll tax bill only a few days before Christmas and had considered other legislation as well.

The recess appointments were a reaction to the failure of the Senate to confirm a number of Mr. Obama’s nominees including Richard Cordray, the nominee to lead the new consumer protection bureau. Republicans had filibustered Cordray’s nomination last month over opposition to the lack of oversight of the new agency. It is worth noting that President Bush declined to make recess appointments while Congress was in session even though Democrats had filibustered a large number of his nominees as well.

President Bush also took criticism for launching the wars in Afghanistan and Iraq, but he did so with congressional approval in both cases. In contrast, President Obama not only launched his Libyan war without consulting Congress, but he also claimed that the War Powers Act, which requires authorization from Congress when U.S. troops are in combat for more than 60 days, did not apply.

In the past, President Obama has also ignored Congress and the legislative process on other issues as well. A year ago the Atlanta Conservative Examiner detailed how two of President Obama’s agency heads bypassed Congress. The FCC enacted net neutrality rules as administrative law after a federal court ruled that the FCC did not have the authority to regulate the internet. At about the same time, the EPA began regulating carbon emissions in the same manner after Congress failed to pass a cap-and-trade law.

There have been other legislative power grabs by President Obama and his regulatory heads as well. In a well-known case, the National Labor Relations Board filed a complaint against Boeing because the aircraft manufacturer, which is unionized at its Washington State plants, planned to build a new factory in South Carolina, which is a right-to-work state. The complaint alleged that Boeing was illegally retaliating for strikes by workers in the Washington factories. There is no law preventing unionized companies from opening new locations in right-to-work states. The NLRB and the union withdrew the complaint last month after Boeing’s union workers approved a new contract.

In one case, the Obama administration’s disregard for the law played into the hands of its opponents. After the passage of the Affordable Care Act, better known as Obamacare, the Department of Health and Human Services began issuing waivers that allowed favored companies and unions to keep their current health care plans until 2014. According to The Hill, over 1,200 organizations received the waivers. The large numbers of groups requesting waivers allowed Republicans to claim that the health care law was expensive and unworkable.

The problem is the ACA did not authorize the government to grant waivers or deviations from the new health insurance requirements. According to the Daily Caller, the Department of Health and Human Services granted itself the waiver authority in an apparent violation of the law. The article cites Heritage Foundation health policy expert Edmund Haisimaier who noted, “I count twenty-one other sections of PPACA [Patient Protection and Affordable Care Act] in which Congress did grant HHS explicit, new waiver authority with respect to specific provisions. Thus, it is reasonable to presume that if Congress had intended the department to institute a waiver process as part of its implementation of this particular provision, Congress would have said so in the statute.”

Another recent revelation from the Obama White House is reminiscent of Marie Antoinette’s “let them eat cake” moment from the French Revolution. According to a new book, “The Obamas” by New York Times correspondent Jodi Kantor, during the height of the Great Recession in 2009, the Obamas threw a star studded Halloween party. The N.Y. Post reports that the party, put on by Johnny Depp and Tim Burton, coincided with the release of Burton’s film adaptation of “Alice in Wonderland.” In addition to Depp’s Mad Hatter, the party also featured George Lucas’s emissary, the original Chewbacca, mingling with guests. The party was apparently covered up by the White House amid concerns about how it would look amid a time of recession and high unemployment.

President Obama’s tenure has resulted in unprecedented expansion of the powers of the executive branch. His overreach should alarm liberals as well as conservatives because it is likely that his practices will be continued by future presidents of both parties. Americans have a right to expect better of a former professor of constitutional law.

Read this article on Examiner.com:

http://www.examiner.com/conservative-in-atlanta/obama-s-imperial-presidency