Tag: dick durbin

What Filibuster ‘Reform’ Is Really About

As the current Congress wraps up, and in the after-glo of the election, Senate Majority Leader Harry Reid (D-NV) is proposing to limit the ability of senators to filibuster in the next Congress. Of course, we’ve heard the arguments about Republican “obstructionism” and not allowing measures to come to a vote. Having spent seven years as Senate staff, this is all spin. Reid’s attempt to ”reform” the filibuster is about one thing:  limiting the ability of Republicans of offer amendments that Reid doesn’t want Democrats to have to vote on.

First, let’s remember that the objective of every majority leader is to stay majority leader. To do so means members of his party must win re-election. One of the important ways a majority leader can facilitate such is to protect his members from tough votes. For instance, witness Reid’s current attempts to stop a vote on Rand Paul’s (R-KY) amendment to limit indefinite detention. You’d think that since many liberal voters and groups oppose indefinite detention, Reid would welcome such a vote. But such a vote would put Democrats and President Obama at odds. So Reid’s favored course of action is to avoid such a vote.

How does this relate to the filibuster? Well after cloture is invoked (see Senate Rule XXII), the only amendments that can be voted on are those that are both pending and germane. And an amendment only gets pending if there’s no objection. All Reid needs to do is oppose amendments for 30 hours, then the curtain comes down and he can force a vote, and this assumes he hasn’t already filled the amendment tree (I’ve witnessed such a process too many times to count). So when Majority Whip Dick Durbin (D-IL) claims, “[w]e’ve had over 300 filibusters in the last six years,” he fails to mention that few of these were actual filibusters. The vast majority were attempts by the Majority to limit amendments by pre-emptively filing cloture.

I’m an empirical person. So while I haven’t found a perfect way to measure this, a good proxy is the ratio of roll call votes to measures passed. After all, a voice vote isn’t much use in forcing uncomfortable votes. Since 1992, the annual average of roll call votes to measures passed is 67 percent. Under Reid its fallen to 60 percent. A good check on whether this a useful indicator is that in election years the measure has been 50 percent, but in non-election years 84 percent, which is what one would expect if a majority leader is trying to protect his members from tough votes.

So don’t be fooled. Reid’s efforts at filibuster reform is not to have more votes, but to have fewer, and to have those votes only on the things which Reid wants voted on. What the Senate really needs is more debate, deliberation, and recorded voting, not less.

Campaign Finance Proposals That Deter Speech Are Bad

Perhaps the first thing you should know about campaign finance “reform” proposals – at least those coming from the left – is that their ultimate goal is to deter speech about political issues.  Whether it’s limiting campaign donations or spending, restricting the ability of corporations or other groups to publicize their views, or imposing disclosure rules, the goal isn’t to have better-informed voters or a more dynamic political system, but to have less speech.   Those who advocate these things want the government to have the power to control who speaks and how much.

That lesson was repeated to me during two public events I participated in yesterday.  First, at a Senate hearing (which you can watch here; my opening remarks, a longer version of which you can read here, begin at 59:50) several senators seemed incredulous at my suggestion that we need more speech rather than less.  After Sen. Dick Durbin (D-IL) tried to get me to admit that I was a Koch pawn, a particularly laughable charge in a year when the Kochs sued Cato over management issues, Sens. Sheldon Whitehouse (D-RI) and Richard Blumenthal (D-CT) were incredulous that I would want fewer restrictions and less disclosures than them.  If I favor certain disclosure rules for donations to campaigns – which I do, in conjunction with eliminating donation caps, as I wrote yesterday – why am I against the DISCLOSE Act, which would impose certain further reporting requirements on independent political spending (and which failed last week after getting zero Republican votes)?

I should’ve just referred the senators to John Samples’s analysis of an earlier version of the proposed legislation, but in any event, the answer boils down to the idea that the required disclosures (of expenditures – which shouldn’t be confused with donations) are so onerous as to burden and deter speech with negligible impact on voter information.  That is, as former FEC chairman Brad Smith explains in this video, disclosing that a TV commercial was paid for by Americans for Apple Pie, one of whose donors is the local chamber of commerce, one of whose donors is the U.S. Chamber of Commerce, one of whose donors is the national widget manufacturers’ associations, one of whose donors is Acme Widgets … doesn’t tell a voter anything.  What it does do is require 20 seconds of the 30-second ad to be given over to disclosure rather than the actual political speech.  So what’s the purpose of the regulation if not to deter that speech?

Moreover, Super PACs already have to disclose their donors, and if their donors are corporations/associations rather than individuals, you can look up the people leading those entities in their corporate filings.  And if the problem is “millionaires and billionaires” – there was more than one reference to the Kochs during the hearing, and I helpfully suggested that I’m happy to defend Georges Soros and Clooney as well – then no law short of a complete ban on political speech by individuals will do.  Luckily, we have the First Amendment in place to stop self-interested incumbents from trying that.

My second public event was an unlikely appearance on the Rachel Maddow Show, where I joined Harvard law professor Larry Lessig, who also appeared at the earlier Senate hearing, to discuss campaign finance regulation.  I thought it went pretty well, and you can watch for yourself (segment titled “How to take American democracy back from the .000063 percent”).  What’s telling is that guest-host Ezra Klein was more even-handed than the senators at the earlier hearing.

Finally, here’s another nugget from yesterday: As I exited the Senate hearing room, a young “reform” activist said to me, “I think you’re a fascist.”  And here I thought that I did a decent job of getting across the point that we should have less government, not more.

No Time to Debate Patriot

Back in February, Democratic leader Harry Reid promised fellow senator Rand Paul that—after years of kicking the can down the road—there would be at least a week reserved for full and open debate over three controversial provisions of the Patriot Act slated to expire this weekend, with an opportunity to propose reforms and offer amendments to any reauthorization bill.  And since, as we know, politicians always keep their promises, we can look forward to a robust and enlightening discussion of how to modify the Patriot Act to better safeguard civil liberties without sacrificing our counterterror capabilities.

Ha! No, I’m joking, of course. Having already cut the legs out from under his own party’s reformers by making a deal with GOP leaders for a four-year extension without reform, Reid used some clever procedural maneuvering to circumvent Rand Paul’s pledged obstruction, slipping the Patriot extension into an unrelated small-business bill that’s privileged against filibusters. All this just to prevent any debate on amendments—the most prominent of which, the Leahy-Paul amendment, is frankly so mild that it ought to be uncontroversial. (Among other things, it modifies some portions of the statute already found constitutionally defective by the courts, and codifies some recordkeeping and data use guidelines the Justice Department has already agreed to implement voluntarily.) Apparently it’s too much to even allow these proposals to be debated and voted on.

One reason may be that a growing number of senators—most recently Ron Wyden and Mark Udall—have been raising concerns about a classified “sensitive collection program” that makes use of the sunsetting “business records provision,” also known as Section 215.  They’ve joined Dick Durbin and (former Senator) Russ Feingold in hinting that there may be abuses linked to this program the public is unaware of, and that, moreover, the secret Foreign Intelligence Surveillance Court has interpreted this provision (in a classified ruling, of course) in a way that the general public would find surprising, and which goes beyond the law’s apparent intent. Intelligence operations, of course, must remain secret, but this means we are now governed by a body of secret law, potentially at odds with citizens’ understanding of the public statute—with the result that we cannot even know the true reason that common sense reforms, once endorsed unanimously by the Senate Judiciary Committee, cannot be adopted. This is—to put it very mildly—not how a democracy is supposed to function. Equally troubling, there’s strong circumstantial evidence (which I’ll outline in a separate post) that the program in question may involve large-scale cell phone location tracking and data mining—a conclusion shared by several other analysts who’ve followed the issue closely.

The one silver lining here is that, while press may not have the patience for a complicated policy debate involving byzantine intelligence law—especially now that many Democrats have decided that powers which raised the specter of tyranny under George W. Bush are unobjectionable under an Obama administration—they are always happy to cover a legislative boxing match. Perhaps, thanks to Sen. Paul’s intransigence, we’ll finally see a little sunlight shed on these potent and secret surveillance powers.

No, Senator Durbin, Earmarks Are Not Transparent

This morning the full Senate voted down a proposed rule that would have barred earmarks for the next two years. Part of the reason? Earmarks are transparent.

Here’s Senator Dick Durbin (D-Ill.), quoted in a Hill article:

There is full disclosure in my office of every single request for an appropriation. We then ask those who have made the requests to have a full disclaimer of their involvement in the appropriation, so it’s there for the public record. This kind of transparency is virtually unprecedented.

Senator Durbin doesn’t know transparency. Take a look at Senator Durbin’s earmark disclosures. Yes, you can read through them, one by one. But can you make a list of recipients? Can you add up the totals? Can you search for common words in the brief explanations for each earmark? Can you make a map showing where recipients of Senator Durbin’s requests are?

No, no, no, and no.

That’s because Senator Durbin puts his request disclosures out as scanned PDFs. Someone on his staff takes a letter and puts it on a scanner, making a PDF document of the image. Then the staffer posts that image on the senator’s web site. It’s totally useless if you want to use the data for anything. Notably, Senator Durbin doesn’t even include the addresses of his earmark recipients.

Last year, visitors to my transparency project, WashingtonWatch.com, laboriously took earmark disclosures like Senator Durbin’s and gathered the data from them. Now—because of their work—you can see a map of Illinois earmarks and the list of Senator Durbin’s requests for FY 2010.

Early this year, President Obama called for “a comprehensive, bipartisan, state-of-the-art disclosure database that allows Americans to examine the details of every proposed earmark before a vote is taken.” He wasn’t talking about WashingtonWatch.com or the public doing this work—he was talking about Congress putting a database together with earmark data in useful formats.

Later in the early part of the year, I worked with a small group of transparency activists to show Congress how to do earmark transparency. Earmarkdata.org has our earmark data schema—the guide to producing earmark information in a way the public can use. (You can sign a petition there to support earmark transparency.)

No, Senator Durbin, your earmarks are not transparent. We’re producing the state-of-the-art database. We’re setting the precedent for transparency. Your PDF-image disclosures are a day late and a dollar short.

Here are the votes on the earmark moratorium taken in the Senate this morning. A “No” vote supports continuation of earmarking. A “Yes” vote is opposed to earmarking.

Global Internet Freedom via Government Regulation?

This morning’s Senate Judiciary Committee hearing on global Internet freedom opened with Sen. Dick Durbin (D-IL) announcing that he would “introduce legislation that would require Internet companies to take reasonable steps to protect human rights or face civil or criminal liability.”  Durbin’s staff tell me they’re in the early phases of hammering out a draft, so exactly what that amounts to isn’t clear yet, but my first-pass gut reaction is that this has the potential to do as much harm as good.

The argument for establishing some such set of rules is pretty straightforward: You don’t want the perverse scenario where corporations worry they’re shirking their fiduciary responsibility to their shareholders if they fail to compete in the market to provide sophisticated technologies of control and repression to the world’s most authoritarian regimes. You don’t want despots exploiting the innovation that springs from the very freedom they deny their own people as a means to cement their own control. It’s possible to frame this as a collective action problem, with tech companies happy to “do the right thing” provided all their competitors do—but with each ultimately deciding to play ball for fear that if they don’t, someone else will.  If that accurately captures the dynamic—and, crucially, if the field of competitors is heavily concentrated in the United States—the binding power of legislation could increase the pressure on foreign governments to abandon repressive Internet policies. In theory, anyway.

But which steps are “reasonable,” and who decides? Google’s recent announcement that it would—eventually—cease its complicity in China’s regime of Internet censorship was greeted with general approbation, to the point where it’s easy to forget that, even if you’re exclusively concerned with what’s in the interest of the Chinese people, it’s a hard call whether and when a principled refusal to deal is really better than distasteful engagement. As Google’s Nicole Wong put it at the hearing, the company’s decision to launch Google.cn in 2006 was premised on “the belief that the benefits of increased access to information for people in China and a more open Internet outweighed our discomfort in agreeing to censor some results.” They’ve now apparently decided that the balance of considerations cuts the other way, but it needs to be stressed that it’s still a question of balance, and there will be real costs to withdrawal.

The tools Google provides can be useful to scholars and activists despite the constraints imposed by the Chinese government—and even when Google does censor search results, it endeavors to make that censorship at least somewhat transparent, announcing to users that some content has been removed. Few expect China to blink in the face of Google’s ultimatum, but it’s also worth noting that whatever leverage companies like Google do have over foreign regimes depends in significant part on their having been there in the first place to develop a user base.  One can imagine the government facing a political backlash if China’s second most popular search engine disappears; it’s hard to imagine much outcry over the decision not to enter the market in the first place. Then again, maybe the upshot of all this will just be that the 30 percent of Chinese Internet users who’d gotten censored results on Google will shrug and get their censored results from Baidu instead.

None of this is to say that Google’s new course is wrong, just that the questions are complex enough that I’d be chary of imposing criminal penalties on a company that made a different call about the balance of interests. Our own government, after all, routinely decides that some Greater Good is served by cooperation with frankly loathsome regimes, and the track record to date does not inspire vastly more confidence in their judgment than in Google’s.

Speakers at the hearing also broached the possibility of government support for various encryption and circumvention technologies that would be useful to foreign dissidents. I’m all for loosening export controls, but as Durbin himself noted, there’s a tricky line to walk here: Without a clear separation of Tech and State, repressive regimes will eagerly seek to reframe their arguments with tech firms over the degree of freedom their people should enjoy as an argument with the United States, which will be portrayed as seeking to “force” our particular conception of democracy on sovereign nations. It will be a spurious argument, but that doesn’t mean it won’t work.

I’ll wait to see the actual bill before rendering any firm judgment, but it seems like it would be awfully easy to pass legislation that lets us pat ourselves on the back for our noble ideals without actually doing a whole lot to advance online freedom in practice.