Tag: harry reid

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.

Oh, the Uses of the ‘Cyber’ Prefix: Cyberbellicosity, for Example

Senate Majority Leader Harry Reid’s (D-Nev.) announcement yesterday of upcoming Senate action on cybersecurity legislation coincides nicely with reporting that the recently discovered Flame virus has similarities to Stuxnet. You see, the best example of a cyberattack having kinetic effects—causing physical damage—is Stuxnet. It targeted Siemens industrial software and equipment used in Iran’s nuclear program, causing damage to some centrifuges used in that program.

Stuxnet is widely believed to be a product of the U.S. and Israeli governments. Flame’s kinship with Stuxnet adds to the story: Our government is a top producer of cyberattacks.

The methods used in these viruses will be foreclosed as researchers unpack how they work. Our technical systems adapt to new threats the way humans develop antibodies to disease. But in the near term the techniques in Stuxnet and Flame may well be incorporated into attacks on our computing infrastructure.

The likelihood of attacks having extraordinary consequences is low. This talk of “cyberwar” and “cyberterror” is the ugly poetry of budget-building in Washington, D.C. But watch out for U.S. cyberbellicosity coming home to roost. The threat environment is developing in response to U.S. aggression.

This parallels the United States’ use of nuclear weapons, which made “the bomb” (Dmitri) an essential tool of world power. Rightly or wrongly, the United States’ use of the bomb spurred the nuclear arms race and triggered nuclear proliferation challenges that continue today. (To repeat: Cyberattacks can have nothing like the consequence of nuclear weapons.)

Senator Reid has gone hook, line, and sinker for the “cyber-9/11” idea, of course. Like all politicians, his primary job is not to set appropriate cybersecurity policies but to re-elect himself and members of his party. The tiniest risk of a cyberattack making headlines to use against his party justifies expending taxpayer dollars, privacy, and digital liberties. This it not to prevent cyberattack. It is to prevent political attack.

Politics is well understood by the authors of the letter Senator Reid cited in his statement about bringing cybersecurity legislation to the Senate floor. They are mostly from the party opposite his. Several of them participated at some level in developing our nation’s cyberbellicose world posture. And several now make their living in consulting and contracting firms that respond to the danger they helped create.

They are:

  • Michael Chertoff, Homeland Security secretary under President Bush, is now co-founder and Managing Principal of The Chertoff Group, which “provides business and government leaders with the same kind of high-level, strategic thinking and diligent execution that have kept the American homeland and its people safe since 9/11.”
  • Mike McConnell, former director of the National Security Agency and National Intelligence under President Bush, is now Vice Chairman of Booz Allen Hamilton.
  • Paul Wolfowitz was a deputy defense secretary under President Bush, now a visiting scholar at AEI.
  • General Michael Hayden, former director of the NSA and the CIA under President Bush, is now a principal at the Chertoff Group, and in January 2011 was elected to the Board of Directors of Motorola Solutions, which “provides business- and mission-critical communication products and services to enterprises and governments.”
  • Gen. James Cartwright, former vice chairman of the Joint Chiefs of Staff, is on the board of advisors of TASC, Inc. TASC “provides advanced systems engineering, integration and decision–support services to the Intelligence Community, Departments of Defense and Homeland Security and civilian agencies of the federal government. We deliver honest counsel, forward–thinking engineering and advanced technologies that help our customers protect Americans at home, in the air, on the battlefield and in cyberspace.”
  • Hon. William J. Lynn III, former deputy defense secretary, is now Chairman & CEO of DRS Technologies, a Defense and Security Electronics Division of Italian industrial group Finmeccanica. DRS Technologies is “leading supplier of integrated products, services and support to military forces, intelligence agencies and prime contractors worldwide.”

The Senate’s SOPA Counterattack?: Cybersecurity the Undoing of Privacy

The Daily Caller reports that Senator Harry Reid (D-NV) is planning another effort at Internet regulation—right on the heels of the SOPA/PIPA debacle. The article seems calculated to insinuate that a follow-on to SOPA/PIPA might slip into cybersecurity legislation the Senate plans to take up. Whether that’s in the works or not, I’ll detail here the privacy threats in cybersecurity language being circulated on the Hill.

A Senate draft currently making the rounds is called the “Cybersecurity Information Sharing Act of 2012.” It sets up “cybersecurity exchanges” at which government and corporate entities would share threat information and solutions.

Sharing of information does not require federal approval or planning, of course. Information sharing happens all the time according to market processes. But “information sharing” is the solution Congress has seized upon, so federal information sharing programs we will have. Think of all this as a “see something, say something” campaign for corporate computer security people. Or perhaps “e-fusion centers.”

Reading over the draft, I was struck by sweeping language purporting to create “affirmative authority to monitor and defend against cybersecurity threats.” To understand the strangeness of these words, we must start at the beginning:

We live in a free country where all that is not forbidden is allowed. There is no need in such a country for “affirmative” authority to act. So what does this section do as it in purports to permit private and governmental entities to monitor their information systems, operate active defenses, and such? It sweeps aside nearly all other laws controlling them.

“Consistent with the Constitution of the United States and notwithstanding and other provision of law,” it says (emphasis added), entities may act to preserve the security of their systems. This means that the only law controlling their actions would be the Constitution.

It’s nice that the Constitution would apply</sarcasm>, but the obligations in the Privacy Act of 1974 would not. The Electronic Communications Privacy Act would be void. Even the requirements of the E-Government Act of 2002, such as privacy impact assessments, would be swept aside.

The Constitution doesn’t constrain private actors, of course. This language would immunize them from liability under any and all regulation and under state or common law. Private actors would not be subject to suit for breaching contractual promises of confidentiality. They would not be liable for violating the privacy torts. Anything goes so long as one can make a claim to defending “information systems,” a term that refers to anything having to do with computers.

Elsewhere, the bill creates an equally sweeping immunity against law-breaking so long as the law-breaking provides information to a “cybersecurity exchange.” This is a breath-taking exemption from the civil and criminal laws that protect privacy, among other things.

(1) IN GENERAL.—No civil or criminal cause of action shall lie or be maintained in any Federal or State court against any non-Federal governmental or private entity, or any officer, employee, or agent of such an entity, and any such action shall be dismissed promptly, for the disclosure of a cybersecurity threat indicator to—
(A) a cybersecurity exchange under subsection (a)(1); or
(B) a private entity under subsection, (b)(1), provided the cybersecurity threat indicator is promptly shared with a cybersecurity exchange.

In addition to this immunity from suit, the bill creates an equally sweeping “good faith” defense:

Where a civil or criminal cause of action is not barred under paragraph (1), a good faith reliance by any person on a legislative authorization, a statutory authorization, or a good faith determination that this Act permitted the conduct complained of, is a complete defense against any civil or criminal action brought under this Act or any other law.

Good faith is a question of fact, and a corporate security official could argue successfully that she acted in good faith if a government official told her to turn over private data. This language allows the corporate sector to abandon its responsibility to follow the law in favor of following government edicts. We’ve seen attacks on the rule of law like this before.

A House Homeland Security subcommittee marked up a counterpart to this bill last week. It does not have similar language that I could find.

In 2009, I testified in the House Science Committee on cybersecurity, skeptical of the government’s ability to tackle cybersecurity but cognizant that the government must secure its own systems. “Cybersecurity exchanges” are a blind stab at addressing the many challenges in securing computers, networks, and data, and I think they are unnecessary at best. According to current plans, cybersecurity exchanges come at a devastating cost to our online privacy.

Congress seems poised once again to violate the rule from the SOPA/PIPA disaster: “First, do no harm to the Internet.”

Obama-Reid ‘Jobs’ Bill Soaked in Greece

A stated aim of the Obama-Reid jobs bill is to preserve the “competitive edge” that our “world-class” education system purportedly gives us. In an attempt to do that it would throw tens of billions of extra taxpayer dollars at public school employees.

A few problems with that: we’re not educationally world-class; we don’t have a competitive edge in k-12 education; and this bill would actually push the U.S. economy closer to a Greek-style economic disaster.

First, the belief that increasing public school employment helps students learn is demonstrably false. Over the past forty years, public school employment has grown 10 times faster than enrollment. If more teachers union jobs were going to boost student achievement, we’d have seen it by now. We haven’t. Achievement at the end of high school has been flat in reading and math and has declined in science over this period. I documented these facts the last time Democrats decided to stimulate their teachers union base, just one year and $10 billion ago.

So what has our public school hiring binge done for us? Since 1980, it has raised the cost of sending a child from Kindergarten through the 12th grade by $75,000 – doubling it to around $150,000, in 2009 dollars.

And what would going back to the staff-to-student ratio of 1980 do? It would save taxpayers over $140 billion annually.

But don’t those school employees need jobs? Of course they do. But we can’t afford to keep paying for millions of phony-baloney state jobs that have no impact on student learning. We need these men and women working in the productive sector of the economy – the free enterprise sector – so that they contribute to economic growth instead of being a fiscal anchor that drags us ever closer to the bottom of the Aegean. Freeing up the $140 billion currently squandered by the state schools would provide the resources to create those productive private sector jobs.

Continuing to tax the American people to sustain or even expand the current bloat, as Obama and Reid want to do, cripples our economic growth prospects by warehousing millions of potentially productive workers in unproductive jobs. The longer we do that, the slimmer our chances of economic recovery become. This Obama-Reid bill is such an incredibly bad idea, so obviously bad, that it is hard to imagine any remotely well-informed policymaker supporting it… unless, of course, they think the short term good will of public school employee unions is more important than the long-term prosperity of the American people.

Thoughts on the Boehner Plan

These are the times that try budget analysts’ souls—especially budget analysts who’d like to see Washington dramatically cut spending. The debate over lifting the debt ceiling has produced a number of proposals from Capitol Hill—none of them have been worth celebrating. We can now add House Speaker John Boehner’s latest proposal to the pile.

Boehner’s proposal boils down to the following: cap discretionary spending over 10 years to achieve $1.2 trillion in savings; have (another) bipartisan group of policymakers come up with $1.8 trillion in “deficit reductions” over ten years; and get a vote on a balanced budget amendment. In exchange, the president would get to increase the deficit by $900 billion this year and by another $1.6 trillion next year.

Here are some thoughts on Boehner’s plan:

  • Under the Congressional Budget Office’s optimistic spending baseline, the federal government will spend $46 trillion over the next ten years. Obviously, reducing spending by $1.2 trillion oven ten years is relatively small.
  • The same dysfunctional congress that treats entitlement programs like lit sticks of dynamite is supposed to come up with $1.6 trillion in “deficit reduction.” Note that we’re not even talking specifically about spending cuts here, so that figure would likely include tax increases assuming they’re able to even come up with something.
  • Under the Boehner plan, spending and debt will continue to rise. At the most, the plan would produce an average of $300 billion a year in cuts in exchange for increasing the debt ceiling by $2.5 trillion over the next two years.
  • Boehner’s bill includes language that tightens up the definition of what constitutes “emergency” spending. Congress regularly slaps the “emergency” designation on all sort of non-emergency spending bills. I have no faith that the new language will stop the foxes guarding the henhouse from continuing to devour chickens.
  • Where are the immediate spending cuts? Once again, we have the promise of cuts but no specifics. Even if the discretionary caps hold the line on that portion of spending, total federal spending (and debt) will continue its unsustainable upward climb. Entitlement spending is the biggest driver of our long-term budgetary problems but entitlement spending isn’t capped under the Boehner plan.

In sum, this plan is another stinker. But with Harry Reid controlling the Senate and Barack Obama sitting in the White House, the votes just aren’t there to get a plan passed that sufficiently addresses our fiscal mess by reining in the size and scope of government.

‘Cut, Cap and Balance,’ the Debt Ceiling and Federal Spending

Cato Institute scholars Daniel J. Mitchell and Chris Edwards evaluate the plans offered by Republicans for lowering federal spending using a so-called “Cut, Cap and Balance” proposal that would make small cuts to federal spending in the short run, cap federal spending, and balance the federal budget using a tax-limited balanced budget amendment to the Constitution.

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.

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