When Republicans take control of the Senate in January, should they revive the judicial filibuster that Democrats instituted in 2003 when George W. Bush was president, but ended last November when Republicans were filibustering Obama nominees? That heads-I-win-tails-you-lose question probably answers itself, but the background is a bit more complicated.
In fact, in a post I rushed into print yesterday morning I mangled some elementary filibuster facts, which I partially corrected late in the day after a reader kindly alerted me to the error. I’m tempted to say that an impostor was writing under my name, but the better explanation perhaps is too little sleep from following overnight election returns. In any event, it turns out that Harry Reid, having gone “nuclear” by ending the judicial filibuster a year ago is in no worse shape going into the next two years, as I’d initially implied, than he would have been had he kept it in place. It’s after that, if there’s a Republican president, that he’ll no longer have the filibuster at hand.
So what’s going on here? Let’s start at the beginning. Article I, section 5 of the Constitution says that “Each House may determine the Rules of its Proceedings.” As students of the subject know, those rules can be arcane. And they change, about which there are also rules. The filibuster is a case in point. It’s nowhere in the Constitution, and it’s changed over the years. On the merits, a good case can be made on either side of the practice. In general, it can keep bad (or good) laws from being enacted—or bad (or good) laws from being removed. In the abstract, therefore, it’s a wash. Empirically, it depends on the history of its use—and where you sit.
If money rules American politics, as we constantly hear from some quarters, you sure couldn’t tell from the stunning upset in the Maryland governor’s race (which I saw coming, having had a good chance to watch as a local resident and citizen volunteer.) Here’s blogger/Republican consultant Mark Newgent:
Anthony Brown lost despite outspending Larry Hogan by $15 million and with the aid of two Super PACs. Hogan took public financing. The Maryland gubernatorial race shows that no amount of money can change a bad message — or overcome a lack of message. The Maryland Democratic Party screamed like banshees over the Citizens United decision yet bit their collective tongue when their candidate availed himself of the very “dark money” they pretend to abhor. That Brown supporters Ben Cardin, Barbara Mikulski, and Donna Edwards all supported amending the First Amendment to allow Congress to regulate speech reveals that [some] Maryland Democrats don’t dislike money in politics — they dislike the opposition’s money in politics.
Mayor Michael Bloomberg’s gun control group alone said it would pour $500,000 in outside money into attacking Hogan. That had no visible effect, and it was worth putting up with the ads for the sake of getting a governor who certifiably owes nothing whatever to Michael Bloomberg.
We now return you to the regularly scheduled rants about how American democracy cannot possibly survive the free-speech guarantees of Citizens United.
Vermont Right to Life Committee, Inc. (VRLC) is a non-profit advocacy group organized as a “social welfare organization” under Section 501(c)(4) of the tax code. It seeks to achieve “universal recognition of the sanctity of human life from conception through natural death.” To accomplish this, VRLC publishes pamphlets, newsletters, brochures, mass e-mails, newspaper articles, and radio ads. The group does not advocate for the election of any candidate or coordinate its actions with any candidate. It simply take donations from supporters and tries to educate people about the sanctity of human life.
Nevertheless, Vermont has required VRLC to register as a political committee because it takes in more than $1000 in donations and seeks to “influence elections.” This means that VRLC has to (1) register with the state, which includes appointing a treasurer and creating a special bank account; (2) keep extensive records about its activities; and (3) regularly give the government extensive reports. All of these requirements add up to a significant burden on VRLC’s educational activities and advocacy while not furthering any real government interest. After all, if VRLC is talking about issues not candidates, then, according to the Supreme Court, there is little or no chance that it will corrupt candidates.
Or, to put it another way, if VRLC has to register and report to the government—and just think for a moment how ridiculous and Orwellian (and Putinesque) that statement is—then who doesn’t have to register with the government to speak about political issues?
The registration and reporting burdens on VRLC are so great, in fact, that the group has said it’s “simply not worth it” to engage in constitutionally protected speech if it has to comply with Vermont’s regulations. VRLC thus brought a First Amendment challenge to many of the state’s convoluted campaign finance laws. The trial court and the U.S. Court of Appeals for the Second Circuit agreed with the state government, however, and held that the burdens on VRLC’s speech were constitutionally acceptable.
VRLC has now petitioned the Supreme Court. Cato, joining the Center for Competitive Politics, has filed a supporting brief.
We argue that the Court should take the case in order to clarify the test for when an organization’s “major purpose” is the “nomination or election of candidates.” The “major purpose test,” which derives from the foundational campaign finance case of Buckley v. Valeo (1976), exists to save issue-advocacy groups from burdensome requirements like Vermont’s. Unfortunately, courts throughout the country misapply this test and place heightened burdens on organizations that simply want to talk about issues of public concern.
We also argue that regulations like Vermont’s place unique and often insurmountable burdens on small organizations. These laws are expensive to comply with, so larger organizations with more resources for accountants and lawyers—overhead that can be better absorbed—have a comparative advantage over smaller players. If the Supreme Court doesn’t take this case, states will continue to find it easy to shut down the political speech—particularly of feisty small idea entrepreneurs—while labeling such censorship as ordinary campaign finance regulations.
The Supreme Court will decide later this year or early next year whether to review Vermont Right to Life Committee v. Sorrell.
From my latest at Darwin’s Fool:
Republicans won an impressive number of victories last night, including a larger and more conservative House majority and enough wins to give the GOP at least a 52-seat majority in the Senate. As Jeffrey Anderson and Robert Laszewski have noted, Republicans made ObamaCare a major issue in the election (the New York Times’ denials notwithstanding). Senate Republicans will fall several seats short of the 60-vote super-majority needed to overcome a Democratic filibuster of an ObamaCare-repeal bill, though. ObamaCare opponents are therefore debating whether and how Republicans could repeal some or all of the law via the Senate’s “budget reconciliation” process, which allows certain legislation to pass the Senate with only 51 votes. Some opponents have proposed getting around these difficulties by getting rid of the filibuster entirely. I think there’s a more prudent, targeted way Republicans could put ObamaCare repeal on the president’s desk, give Democrats a taste of their own majoritarian medicine, and convince Senate Democrats of the virtues of restoring the filibuster on legislation and judicial nominations.
It goes like this…
#1: Justice Ruth Bader Ginsburg may be reconsidering her decision not to retire. President Obama or a future President Hillary Clinton will have much less leeway with replacing her in a Republican-controlled Senate.
#2: There will be very few lower court judicial confirmations. Those that get through will be completely uncontroversial. Forget the nuclear option that removed judicial filibusters. At this point, with no political capital, President Obama will only get a small number of milquetoast nominees through the Senate.
#3: Expect even more litigation regarding executive actions. With no chance of getting his expansive regulatory project through Congress, President Obama will increasingly use the executive branch–particularly the EPA, the IRS, and HHS–to advance his policy agenda. That is good news only for litigators.
With Republicans taking the majority (but far short of control at 60) in the Senate and increasing their majority in the House, the regulation of our financial markets may see renewed attention, with particular focus on reforming Dodd-Frank. My former employer Senator Richard Shelby takes the Chair on the Senate Banking Committee, while Congressman Jeb Hensarling retains his leadership role on House Financial Services.
In my nearly twenty years following financial services, we have not had two chairmen more skeptical of government oversight of our financial markets. While neither could be called “libertarian,” both are suspicious of big government as well as big finance. Both agree that “Too Big To Fail” is a real issue and one created by the actions of government, not the market.
Sen. Shelby, for instance, has repeatedly said “no one is too big to fail” - what he means here is that no company should be getting a bailout. It was for that reason he led the charge in the Senate against the TARP, and also for that reason he voted against the Chrysler Bailout in 1979. Shelby also led the efforts to reform Fannie Mae and Freddie Mac, warning years before their failure of the various flaws inherent in a mortgage model of privatized gains and socialized losses. Shelby also tried to bring more competition to the credit rating agencies, passing legislation in 2006 to reduce barriers to entry in that market.
The above, however, should not be read to overstate the case. Both Rep. Hensarling (who apparently had a subscription to the Cato Journal in college) and Sen. Shelby would like to see the federal safety net behind our financial markets reduced, allowing a greater role for market discipline. Perhaps even more rare in D.C., they both believe their chairmanships come not just with privilege but great responsibility. If it were simply up to these two to agree, I have confidence that our system of financial regulation would be greatly improved, reducing bailouts and increasing stability.
But it isn’t up to these two. There are numerous protectors of the status quo in both major political parties. Both would also have to reach agreement with the Obama Administration, which seems quite comfortable with bailouts and regulatory discretion. Ultimately, the many obstacles our Founding Fathers wisely put in place for legislation will prove too high for Shelby and Hensarling to implement all but modest reform.
But at least financial regulation is unlikely to get any worse.
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