Constitution

Filibuster Reform 2013

Nov 302012

With a new session of Congress set to begin in January, there are again calls to ditch the filibuster in the Senate. This is becoming a biannual tradition inspired by the dramatic increase in the use of the obstructive tactic in the last 30 years. So it’s time for another filibuster rant.

from Joe Arrigo’s “Perspective”

1. Should the filibuster be reformed?

It has been ruined through overuse. Like many other abused privileges it needs to be taken away. It has grown from a rarely-used technicality to an exception that swallows the rule (in this case, the majority rule). A method for protecting and respecting minority voice and rights has been finally reshaped forever as a tool for minority rule. Minority rule is the seed of oligarchy (look it up) which could replace our democracy or republic (whichever version of America you subscribe to).

The historical filibuster data shows Republicans are the innovator of the evil, Democrats just follow their pace. End it so neither can use it.

President Obama didn’t win 67% of the vote, so does that mean Mitt Romney should get a veto pen too?

If you don’t like what the Senate is doing, the constitution already gives you the power to stop them through these things called elections. You have to persuade enough people that you are right. If you can’t convince majority of people (50% + 1) that you are right, you do not deserve to have the power to pass laws that affect the right of all of the people (100%).

We don’t need the filibuster to provide checks and balances. The constitution explicitly provides this by setting up separate branches of government, and further within the legislative branch divides power again with a bicameral legislature. You don’t need the filibuster to protect the country against 51 Senators. Whatever the Senate passes has to get through the House too, then has to get past a president’s veto power. If a policy has enough support to get through all of that it is an abomination that it can be stopped by one anonymous Senator.

2. Is the filibuster constitutional?

No. The constitution does give the Senate the power to set its own internal operating rules, but people are missing the obvious point that those rules cannot then violate other parts of the constitution. The rule-making power is not unlimited. Think about it this way: If the Senate is free to make any rule, they could make up a rule that says “No Girls Allowed” and ban all female members? Do you really think they could do that? The Senate’s power to make its own rules must have limits.

I said before:

If a law has the support of a majority of the people’s representatives, unless it falls into one of the categories where the Constitution requires more, it should pass. A republic based on representation of the people relies on majoity rule. Think about it. We don’t hold elections this way. If a candidate gets 51% of the vote, he wins. Nobody would tell him, “Sorry, 49% voted for the other guy. You can’t go to Washington.”

Some idiot will come back and say that there’s no mention of “majority rule” in the constitution. Majority rule is such a basic asumption of representative bodies and principle of democratic republic that it didn’t need to be expressly stated in the constitution. Next, you’ll tell me that dead men can serve in Congress, because the constitution does not expressly state a living persons requirement in the qualifications clauses.

3. Will the Supreme Court strike down the filibuster?

The Court may see this as a duckable issue using a form of the political question doctrine to let the Senate handle its own process. This would likely be the basis of a partisan motivated decision to uphold it, essentially, by punting the issue.

When a Senate rule in its operation is so egregious that it strikes at the core of what it means to be a republic (or democracy, take your pick, again) then it is the Court’s duty to intervene. A Court ducking behind a political question doctrine would itself be complicit in the Senate’s folly.

4. Will the Senate reform the filibuster on its own?

There is some hope or suggestion that the Senate will come to an agreement itself to reform filibuster or its use. It probably won’t happen, and it’s largely an issue of leadership. Senate Majority Leader Harry Reid, like President Obama, knows what is the right thing to do, occasionally talks about it forcefully, but ultimately lacks the guts to do what is necessary.

Does Harry Reid have the manhood to end the filibuster?

With a bit of bluster this month Reid has finally offered his support behind a filibuster reform plan. This mediocre plan simply removes the ability to filibuster one step in the process and adds some transparency to the filibuster tactic by having the filibustering senators talk.

5. How do both sides benefit from the filibuster rule?

The obstructive minority helps all incumbents by keeping tough, yet popular issues off the table. Politicians are protected when they don’t have to make a call on the record. Look at 2007-2008 in the table above. The Republicans had George Bush in the White House and the minority in the Senate. President Bush could have vetoed everything the Democratic majority would have passed, but the GOP still went with the filibuster. The Democrats did the same in the Clinton years. Both sides have benefited from using the filibuster to duck accountability on the issues. It keeps your record clean: you do not have to vote against a bill, the president doesn’t have to veto, etc.

This last reason is why I won’t be surprised if it filibuster reform ultimately fails yet again.

Election Skewing Schemes are Republic Rape

Politics 6 Responses »

Jul 272012

Trying to rig elections is an attempted rape of the republic, taking power without legitimately receiving the consent of the governed. Gaming the electoral system to shift the outcome even slightly is an affront to the basic principles of democracy underlying our representative republic, the same cherished ideas that thousands have died fighting for. People need to start getting angry about this instead of thinking, “Oh, well, if it helps my team win, I don’t really care.” Imagine a code of electoral sportsmanship written by Tonya Harding (here’s the link, confused millennials).

Tampering with the connection between citizens and their representatives severely undermines what it means to be a republic. Our elections are the connection. Chip away at enough of this connection and the republic established by the constitution is gone. To paraphrase Yakov Smirnoff: “In a republican democracy, voters choose their politicians; in America, politicians choose their voters.”

Elections are imporant, because that’s how we measure the consent of the governed. Where have we heard that before? Here, in the frickin’ Declaration of Independence (not to be confused with the Declaration of Frickin’ Independence):

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

That’s right; the ever-glorified founders didn’t like it when ole King George got too cute messing with the consent of the governed, so they ended up starting a little war we’ve all heard about. When that war was over, they they created a government by writing another well-loved document, the U.S. Constitution. It contains these nuggets:

Article I, Section 2: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Article VI: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

Amendment XV: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Amendment XIX: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Amendment XXIV: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Amendment XXVI: The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Despite all of that, you should be horrified to hear, the Supreme Court has not found that people have a federal constitutional right to vote. The standard is that if the state chooses to allow voting, the government cannot impede your vote using certain methods: discrimination based on race, sex, age, poll tax, etc. Other restrictions can stand with relatively minor justifications.

Right now it seems as if the Republican Party is leading the way — by being more desperate and/or crafty — in coming up with electorate shaping schemes. I’m not letting the Democrats off the hook here. The Democratic Party has for years been a willing co-perpetrator of the now traditional abomination known as partisan gerrymandering. Besides, generally the Democratic Party is either too weak or stupid to come up with these creative, aggressive, and shameless election tinkering schemes.

What prompted this increasing Republcan backlash against small-r republicanism? It seems the GOP has seen the writing on the wall about demographics: The future electorate is increasingly leaning towards the Democrats. To continue to have a chance to win, they are making a strategic decision to tinker with the election process. Make it harder for people to vote, so only the most agitated will make the effort to cast a ballot. Secondly, shape the process to allow Republican allies to have greater opportunity to have a bigger impact on how the citizens vote (See Citizens United).

Even if the reforms appear to have a minor impact on the electorate, it only takes a few hundred — sometimes even a few dozen — votes to determine the outcome in some races. Here are some ways they are making it harder for people to vote.

Restricting Voter Registration: A Florida law required groups conducting voter registration to turn in registration forms within 48 hours or else face a $1,000 per day fine. That law has been blocked by a federal judge, and groups have resumed their work in Florida. Inactive for several months, they are well behind the registration pace of 2008.

Rolling Back Early Voting: Ohio’s new law, enacted by Republican controlled legislature and signed by John Kasich “ends in-person early voting for most Ohioans on the Friday evening before the Tuesday election, while allowing military and overseas voters to cast ballots in person until Monday.”

Purging Voter Rolls: Topping the list is Florida, where Republican governor Rick Scott is determined to eradicate the threat of non-citizens voting at any cost, but his favored cost is “accidentally” locking out would-be Democratic voters who happen to have foreign-sounding names.

Now with access to Homeland Security database, Florida can send a letter to everyone who has a name that matches. Imagine having the Latino equivalent of John Smith on the list. Three or four may be illegally registered to vote, but hundreds may be forced to rebut the presumption that they can’t vote. This appeal process takes more effort than simply showing up to vote. It’s reasonable to expect some voters might think it is not worth the effort to find their “papers” and take additional steps to be eligible to vote. Some people just won’t have the time for this nonsense, and the deadline is rapidly approaching. With the election so close, knocking out a few probable-Democratic voters could prove the difference in the results.

Governor Scott’s ability to enforce the purge may face some resistance at the local level. For example:

“It clearly is partisan and political, but actually, there is no purge going on at the moment,” said Ion Sancho, the elections supervisor in Leon County, which includes the state capital of Tallahassee. “Unless the quality of the information we receive from the state gives us a reasonable belief that it is accurate, we don’t actually have to do anything.” Sancho, an independent who is harshly critical of Republican voting-restriction efforts, predicted he and many of his fellow clerks would simply refuse to implement voter removals out of concern the evidence wasn’t sufficient.”

That act of defiance set of my legal-spidey-sense. In another Florida recount scenario, I could see Romney’s attorneys filing suit about whether these votes should count absent further proof of citizenship citing the refusal of supervisors to use the purge lists.

Requiring Photo ID: Requiring voters to show government-issued photo ID is the most visible scheme because it seems so obviously targeted at a group that is heavily Democratic. Any doubt that this is politically motivated is erased by the new Texas law (also currently in litigation) allowing voters to use military-issued ID and concealed carry gun permits, but not state college photo ID.

Want more proof? Ask Pennsylvania House Majority Leader Mike Turzai. Turazi recently described his party’s successful passage of a new voter ID law: “Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done.” I bet he got reprimanded for that one. “The first rule of Rigged-Election Club> is you don’t talk about Rigged-Election Club.”

Since this is just a partisan ploy, let’s try to predict the next voter selection/suppression effort after everyone has their ID. How about this: disabled voters tend to lean Democratic. When that knowledge becomes more widespread, expect GOP officials when asked about efforts to install or repair ramps at polling places to respond, “We just don’t have the money.” If nudist voters show a tendency to vote Democratic, expect the spread of “No shirt, no shoes, no vote” laws.

Voter Suppression Map via CampusProgress.org

Yes, voter fraud exists, but it is nowhere near as rampant as they want us to think. Voter ID laws are like using a sledgehammer to swat a fly. They spout a noble goal of wanting to get the fly, but what they really want to do is smash a chunk of your wall. Stopping a handful of potential fraudsters (and what a huge impact they would have on an election) at the cost of burdening thousands of innocent voters and disenfranchising hundreds — cracking down on voter fraud causes collateral damage that could win the election, costing the integrity of the republic.

This strategy of implementing election skewing schemes is a treasonous usurpation, striking at the core of what it means to be a republic. These are the desperate acts of a dying party that can’t win in a system where power is given to those with support of the majority of voters; instead of working to win over the public, it just alters the system. This is republic rape: taking power without the consent of the people. If you have to cheat, you don’t deserve to win. It is neither a legitimate nor honorable victory.

“The Constitution v. the Filibuster” or “It’s Obvious, You Idiot!”

Politics 1 Response »

May 212012

Last week Common Cause filed a lawsuit to end the filibuster rule in the U.S. Senate. The filibuster has been a growing problem in the past 40 years, and has really gotten out of hand the past decade. The Senate’s filibuster rule is one of the major problems ruining our unique American “republican democracy.”

The filibuster has become so abused that it has become the standard operating procedure in the Senate, the new de facto process for how a bill becomes a law. The threat of 41 votes is enough to defeat any bill. This means Senators of any 21 states representing as little as 11 percent of the population (in fact, elected by even fewer people) can block action supported by the majority.

Although Harry Reid recently hinted he would now be in favor of it, filibuster reform from within the Senate seems to be a lost cause. They keep the filibuster rule out of fear of what the other side would do if they captured the majority. (Who would have thought someone named Harry Reid would have such an empty sack?)

If a law has the support of a majority of the people’s representatives, unless it falls into one of the categories where the Constitution requires more, it should pass. A republic based on representation of the people relies on majority rule. Think about it. We don’t hold elections this way. If a candidate gets 51% of the vote, he wins. Nobody would tell him, “Sorry, 49% voted for the other guy. You can’t go to Washington.”

Some idiot will come back and say that there’s no mention of “majority rule” in the constitution. Majority rule is such a basic asumption of representative bodies and principle of democratic republics that it didn’t need to be expressly stated in the constitution. Next, you’ll tell me that dead men can serve in Congress, because the constitution does not expressly state a living persons requirement in the qualifications clauses. (Also opens the door to corporate persons serving in Congress. Hello, Senator Wal-mart!)

“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”

Do you really want to see a “Weekend at Bernie’s 3″ starring the corpses of Senators Byrd and Thurmond propped up on the floor of the Senate? The Court should probably enact an “It’s obvious, you idiot!” doctrine.

The filibuster has become a way for one of the parties to try to cheat their way out of a minority status. Listen: You lost; deal with it. Here’s how: Spend the next two years saying “we told you so” every time the opposition passes a law you can’t stand. If a majority of the public thinks the legislation is as egregious as you do, then you will win the election, take back the majority, and get a chance to implement your own asinine plans. Eventually, after a few terms of back-and-forth control, America might reach an equilibrium of good governance. Who knows? Stranger things have happened.

Whether the Common Cause lawsuit can succeed is unclear. Certainly there is a legitimate legal theory supporting their position. Check out this article. There’s a good chance that the court will duck the issue using a weak “political question” doctrine reasoning. Of course, a lot will depend on the particular judge and the timing. Conservative partisans (as opposed to those that are actually primarily loyal to the text) would kick this case to the curb if it comes up with the Democratic Party holding the majority in the Senate. If the majority switches hands, they will suddenly see the light. Many so-called liberal judges would probably also take a similar partisan approach. (You can see that I no longer have much faith in the existence of an intellectually honest judiciary.)

If filibuster reform is attempted again via the Senate rule-making process they should try on this creative compromise: if you are going to let them usurp popular sovereignty, make them sacrifice some dignity. Turn the filibuster into a silly-buster. The senator would be required to actually speak and must dress up as a famous clown. You could read the phone book as Krusty, Bozo, Ronald McDonald, or Red Skelton. If you want to make a mockery of American Democracy, it should make a mockery of you. There will be no exception for dressing as a mime (to get out of speaking) or wearing a suit claiming to be dressed as Glen Beck (who famously referred to himself as a clown).