John Brennan’s confirmation as CIA director displayed Congress’s disinterest in checking the president’s runaway security powers. Two months ago, when I wrote an article with the unwieldy title, “Will Obama’s Brennan Pick Shed Some Much Needed Light on Drones?” I wouldn’t have guessed that the answer would be yes; it will bestir Congress to finally force the administration to say clearly that it does not reserve the right to kill Americans at home with drone strikes, insofar as they are not engaged in combat. That statement came only thanks to whomever leaked the Justice Department’s summary memo on the topic, Brennan and Attorney General Eric Holder’s impolitic reluctance to articulate limits on the president’s power to kill Americans by calling them terrorists, and, of course, Sen. Rand Paul’s (R-Ky.) resulting filibuster. The Senate predictably left Brennan’s other sins against civil liberties mostly unexamined.
Paul’s hard-won “toehold of constitutionality” isn’t much to cheer about, even if we add to the spoils the administration’s vague agreement to be more open about its legal rationale for placing people on kill lists. This minimal defense of civil liberties and congressional privilege is what got Republican senators like Marco Rubio of Florida and Ted Cruz, Jr. of Texas, who seem to support unfettered executive discretion to kill in the name of counterterrorism outside the United States, to support the filibuster.
Even that was too much restraint for the neoconservative right. Sen. John McCain (R-Ariz.) read on the Senate floor a Wall Street Journal editorial calling Paul’s effort a stunt meant to “fire up impressionable libertarian kids” and assuring us that those targeted by drones here or abroad will be “enemy combatants.” McCain and the Journal spectacularly miss Paul’s point: the issue is whether the president should make that designation, chucking due process rights, without being checked by another branch of government.
As McCain amigo Sen. Lindsay Graham (R-S.C.) noted, the Republican caucus’ flirtation with civil libertarianism seems a situational consequence of partisanship. The same goes for Democrats. Were it President McCain doing what Obama is, far more than two Democratic senators (Jeff Merkley of Oregon and Pat Leahy of Vermont) would have voted against Brennan. During his filibuster, Paul asked what happened to the Senator Obama of 2007, who opposed torture and war by executive fiat. Paul suggests that those views were products of Obama’s then circumstance: not being president. Even that may be too generous. As I wrote in a recent book review concerning Obama’s counterterrorism record, “even when he took office, there was ample evidence that his dovish positions would not outlast their political convenience.”
We can hope, I suppose, that Paul’s stance will increase Congress’s willingness to assert its constitutional war powers. Although he did not, as far as I know, propose specific restrictions on the use of military force outside of the United States, Paul did complain that the 2001 Authorization of Military Force against the perpetrators of the September 11 attacks and those that harbored them has become a permanent warrant for almost limitless executive war powers, a kind of escape hatch from the Constitution opened by presidential utterance of the word “terrorist.”
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.
This morning I outlined the stakes of today’s seminal cloture vote on Goodwin’s Liu’s nomination to the Ninth Circuit. Well, now we have a result: cloture failed 52-43, with Senator Ben Nelson (D-NE) joining all voting Republicans except Lisa Murkowski (R-AK) against cloture. Three Republicans plus Max Baucus (D-MT) were absent, while Orrin Hatch (R-UT) voted present because of his previous strong position against filibusters.
This is the first judicial nominee filibustered since the Gang of 14 brokered an agreement on President Bush’s nominees in 2005, forestalling then-Senate Majority Leader Bill Frist’s use of the so-called nuclear option (changing Senate rules to eliminate the judicial filibuster). That agreement, to the extent it’s even still valid given the changed composition of the Senate (and with five of the 14 Gang members no longer in the Senate), allowed filibusters only in “extraordinary circumstances,” leaving that term undefined.
And so we may have just have witnessed the re-ignition of the war over judicial nominees. Stay tuned as to whether today’s vote will come to signify the “Water-Liu”—h/t Walter Olson—for one party or another, or for our judiciary.
Is the Senate broken?
Should the upper chamber operate more like the House, where majority rules?
Some people believe that the Senate is “broken” when it doesn’t pass new government programs promptly and without extended debate. But we have two houses of Congress for a reason. The Founders expected the House to be subject to momentary passions, and they intended the Senate to be more cautious, prudent, and resistant to “rushing to judgment.” As George Washington supposedly said, “we pour legislation into the senatorial saucer to cool it.” When the Senate deliberates at length, when it resists the pressure of the White House, the House, and even public opinion, it isn’t “broken”; it is fulfilling its intended function.
Of course, it should be noted that when senators in the past two years have had doubts about the health care overhaul and energy taxes, they weren’t resisting public opinion; they were actually reflecting public opinion, while the House acted as a partisan body in defiance of polls.
Of course there are double standards in talking about filibusters and the like, as I pointed out back in 2005:
Both Democrats and Republicans have flip-flopped on the use of the filibuster because the once solidly Democratic Senate now looks to be firmly Republican.
Republicans who once extolled the virtues of divided power and the Senate’s role in slowing down the rush to judgment now demand an end to delays in approving President Bush’s judicial nominees. President Bush says the Democrats’ “obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate’s constitutional responsibility to vote on judicial nominees.”
Democrats who now wax eloquent about a “rubber stamp of dictatorship” replacing “the rights to dissent, to unlimited debate and to freedom of speech” in the Senate not too long ago sought to eliminate the filibuster altogether.
Now Democrats are back in the majority, and both parties have tended to shift their view of the filibuster yet again. In the long run, though, establishmentarians like the New Yorker’s George Packer think that the purpose of government is to pass new laws, regulations, and programs; and they complain when the Senate or any other institution stands in the way of such putative progress. Those of us who prefer liberty, limited government, and federalism appreciate the constitutional and traditional mechanisms that slow down the rush to legislation.
Now that the Obama health plan is law, more than a dozen states are asserting that Congress has exceeded its Commerce Clause power in imposing a mandate on individuals to purchase health insurance from private companies. No doubt, individual citizens will challenge the individual mandate on their own behalf.
States are also asserting that the threat to withhold all Medicaid payments if the states do not set up health insurance exchanges and enact other regulations amounts to coercion and unconstitutional commandeering of states by the federal government.
No one who opposes ObamaCare should put their faith in the Supreme Court to strike down an act of Congress, no matter how unprecedented and unconstitutional it may be. Nor should those who support ObamaCare be confident that the Supreme Court will uphold these provisions.
Legal challenges cannot take the place of political action. The Court hates to strike down popular legislation, but if the legislation is unpopular, one or both houses of Congress have changed parties and only a filibuster or presidential veto is preventing repeal, then the Court may feel more comfortable upholding the Constitution.
At Politico Arena today, Clinton’s acting U.S. Solicitor General Walter Dellinger worries that after yesterday’s vote in Massachusetts, Obama’s Supreme Court nominees may be subject to Republican filibusters.
Walter, my good friend, where were you all during the Bush ‘43 years? I recall seeing you often in town, when you weren’t teaching down in Durham. But if I may judge from your Arena concern today that Republican senators, after the late unpleasantry in Massachusetts, may now filibuster an Obama Supreme Court nominee, you must have missed the unprecedented and repeated Democratic filibusters of Bush appellate court nominees over several of those years. Did you forget that after the Democrats took control of the Senate in May 2001, following Jim Jeffords becoming an Independent, eight of Bush’s first eleven May 2001 appellate court nominees had not had so much as a Judiciary Committee hearing as we were coming down to the 2002 elections? And after the Democrats lost control of the Senate in those elections, when they could no longer stall by refusing to hold hearings, they moved to the filibuster – over no fewer than ten nominees. Did you forget that our good friend, the eminently qualified Miguel Estrada, one of Bush’s May 2001 nominees, finally withdrew his name from consideration in September 2003, after 28 months in limbo and six failed cloture votes?
To be sure, those were appellate court nominees, but the principle is the same – and Bush’s Supreme Court nominees escaped a filibuster, let me remind you, only after the “gang of 14” finally reached a compromise, failing which the “nuclear option” would have brought an end to the unprecedented Democratic filibuster of Bush’s nominees. (I ignore the 1968 Abe Fortas case, which had special circumstances.)
If Republicans were to filibuster an Obama nominee, therefore, instructions for doing so would be readily at hand. I’m not suggesting they do so, however. The filibuster is, as you know, an extra-constitutional procedure, with something of a checkered history. For better or worse, it has served as an additional check on the passions of the lower chamber, but its use for executive nominations, as distinct from legislation, raises difficult separation-of-powers questions, which are your main concern, I’m sure.
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