The Nuclear Option

March 1, 2010

Again, the point of this piece, as with other items I write from time to time, is less about the substantive matter at issue (in this case health care reform, again), but about political process, in general, and the filibuster concept specifically.

In ancient times, the Senate being the grand chamber of the Congress, composed of those esteemed gentlemen who were appointed by state legislatures, not elected by the people, consisted of only 26 members.  These elite folk determined that, unless 60 % of them voted to limit debate, any senator should have the right to speak at his discretion to fully explicate his position.  Over time, the filibuster came into play as a method for individual senators to utilize this rule to stop the chamber from actually voting on a particular matter the passage of which was abhorrent to those individual members.  As a matter of respect for their membership, cloture (the cutting off of debate) was rarely ever put to a vote as this was a sign of disrespect in a chamber were the appearance of respect was part of the fabric.  In the second half of the 19th century, as certain issues become more and more controversial, the possibility of filibuster became something of a weapon wielded by the minority to force the majority to compromise.  Actual filibusters remained rare.

For those of you old enough to remember the Nixon and Johnson administrations, you may recall that there were actual filibusters.  When the Civil Rights Act when to the floor of the Senate, Strom Thurmond actually tried to stop the passage by exercising his right to talk indefinitely.  Eventually he gave up and the Act was passed by less than the supermajority needed to cut off debate.  However sometime in the Reagan years, the concept of “notice of intent to filibuster” came into play and if a senator gave notice of intent to filibuster, a bill was tabled unless sixty senators voted to limit debate.  Thus was born the policy of requiring a 60 senator vote at the outset of debate so that the senate did not take up its precious time debating a matter on which there would be no vote, i.e. the threat of a filibuster on any bill was taken so seriously that the Senate evolved into requiring a 60 vote majority to pass almost any legislation.

After a while this became an intolerable obstruction to the day to day business of the Senate and a compromise was reached through  Budget Bill.  Under this compromise, matters which related to the budget efforts to reduce the deficit would be exempt from the filibuster rule.  (Interestingly, Senate Rules which provide the right to filibuster also allow for their amendment, including amending the provisions relating to the filibuster, without the right of filibuster or the need for a cloture vote to bring an amendment of those rules to a vote.)  As a result, for a number of years, the senate has regularly used this process, called “Reconciliation” to avoid the need for a cloture vote.   Examples of this include amendments to the Medicare and Medicaid programs, the creation of the CHIP program and its revision to create the SCHIP program and on and on.  Interestingly, this process has often been used by the Republicans and Democrats alike when the cloture process has created an insurmountable hurdle to the need to bring a matter to a vote.  While this process has been used a number of times by both parties over the last generation, its use remains relatively infrequent.

In the Bush 43 years, when it became clear that George W Bush would have an appointment to fill a vacancy on the supreme court, the Democrats raised the prospect of a filibuster if there was dissatisfaction with the conservative background of a nominee.  When the possibility of a filibuster of a Supreme Court nominee surfaced, the Republican majority in the Senate threatened to amend the Senate Rules to prohibit filibuster with respect to judicial nominees, the so-called “Nuclear Option”.  (Remember this could be done with a simple majority because the filibuster right does not apply to debates relating to amendment of Senate rules.)  While this amendment to the Senate rules was avoided by a compromise worked by the “gang of 14”, seven senators from each of the two parties, the possible death knell for the cloture rule has been a ghost haunting Senate process ever since.

And along comes  a special election in Massachusetts which drops the Democratic majority to less than 60/40 and so, effectively, Democratic legislation  is subject to  filibuster.  And here we are with a Health Care Reform Bill being held hostage by the ‘notice of intent to filibuster’ and the ensuing result that the Senate has again devolved into the need for a supermajority to get major work accomplished.   And here we are again with the notion of utilizing the reconciliation process which is exempt from the filibuster possibility and the need for a cloture vote  to end it.  And here we are again with the minority Republicans shouting foul at the possible use of this process when the Republicans  have used the reconciliation process for its own benefit in the past.

All of this is wonderful demonstration of the double edge nature of U. S. politics, of how the filibuster is alternatively a great political weapon for first one party in the minority and then the other, and of how reconciliation is a tool for first one majority and then the other.  What troubles me, however, is how little of all this is actually understood by the electorate as a whole and how politicians can in one year use one of these processes as a weapon or tool and then decry its use when roles of majority and minority are reversed.  I am reminded of an episode of the Jay Leno show and his “Jay Walking” segment during the “nuclear option” debates over  judicial nominees in which he asked people on the street what a filibuster was.  The answers, while funny in a humorous sense, are quite disturbing when you realize the potential for political manipulation it suggests.

Please share your thoughts on the process.

Unless one is very active in looking for and absorbing a variety of news sources which treat matters with some depth, one might miss a critical event thats about to occur.  The U.S Supreme Court is probably going to gut McCain Feingold and give corporations unfettered power to make campaign contributions. 

As background, the Court held a number of years ago, in ruling that the federal government had only limited right to regulate campaign contributions, that, effectively money is speech and the first amendment bars limits on the freedom of speech.  Recently, several corporations made contributions to the cost of producing an anti-Hillary film that was to be aired right before an election and the lower courts (upheld by the Court) determined the film to be a campaign film.  The Court will now determine whether that film can be shown as a campaign presentation having been funded with corporate contributions outside the limits of McCain Feingold.  The premise of the ruling requested by the film’s producers is that those corporations are “persons” and therefore are entitled to first amendment protection in the form of the right to use its wealth to influence elections.  The ultimate ruling is now likely to be in favor of the producers based on the alignment of the Court, with Kennedy, the regular “swing” vote siding on the ‘right’.

Is this the right decision and why should we care?  As to the first question, there are liberals and conservatives on both sides of this issue.  Politically speaking, there are liberals who see this as an opening for political contributions by “Big Labor” in addition to big business and there are conservatives who’d rather not see unions have an expanded role in campaigns.  In fact the producers are represented by a well know first amendment attorney who has worked for many ACLU causes.  And they say “politics makes strange bedfellows”. 

But lets look at the two legal issues, is money a form of speech and are corporations “persons” entitled to first amendment protection.  As to money equating to speech, an example might help.  Last year I made $500 in political contributions in an effort to make my voice heard in a local election not governed by McCain Feingold.  That was all I could afford.  This enabled my candidate to purchase roughly 3 seconds of local TV airtime.  Concurrently a local gaming company privately held by a local family backed the opposing candidate and contributed orders of magnitude more to that candidate, giving enough money to purchase hours of local TV air time.  In effect, that corporation’s contribution enabled it to drown out my voice by the sheer weight of its contribution.   In effect, that family is permitted by virtue of its wealth to have a greater and very direct impact on the outcome of the election. 

And if money is speech does a corporation really have a first amendment right?  Did the framers of the Constitution really mean for Congress to be hamstrung in its rights to control corporations?  Did they even think about corporate entities?  While corporations did exist at the time, they were nothing at all like the corporations of today.  They were not the megaliths that exist today.  And they had little if any political role.  And if they are “persons” for purposes of the first amendment, is that because of the constitution or because of the State laws that creates them and treat them as a “person”.  And what of the concept of “strict construction”?  Why is it that the 5 Justices who decry judicial activism the loudest when the fourth amendment is stretched to bar limits on abortion because abortion is not an express right, are not saying that corporations are not mentioned in the constitution and so have no rights? 

The whole concept of free speech is that the free flow of information in the marketplace of ideas assures that the electorate will have the opportunity to make its decision on the basis of all available concepts.  Freedom of speech does not require that wealthy be given a higher podium in that marketplace or more time at the podium so as to tilt the playing field in their favor.  But when we allow corporations to use their wealth to monopolize that marketplace, to overwhelm it with their ideas and values, the values and ideas of the less wealthy, of which there are far more, are drowned out to the point of irrelevancy.  When one looks at the data of the last generation of elections, the one fact that jumps off the page is that the candidate with the most money to spend wins a greater percentage of the time than any other single determinant, i.e. the vast majority of the time.   And the margin of victory is generally directly proportional to the difference in funding.  Therefore,  one can conclude with some certainty that, if corporations are allowed to pour significantly more dollars into elections, they will have a significantly greater impact on the results.  One can reasonably argue that this will move us from a Democracy towards a “Corporatacracy” where the greatest share of political power is wielded directly and clearly by the wealthy, corporate interests and not by individuals.   Does the first amendment really require this?