Nov 24 2013

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The Wanton Tyranny of Democrats

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When the Senate Was Great...

When the Senate Was Great…

Last Thursday was a dark and dispiriting day for any American who revere’s the US Constitution and the customs and traditions that have evolved from it. On Thursday, in a deceptively simple vote, Democrats unilaterally ended the fundamental right to debate in the US Senate, a practice in place for 224 years.

Using a suspect legislative procedure, never employed previously be either party, the Senate approved a motion that now requires only 51 votes to approve Executive and non-SCOTUS judicial nominations. What is even more painful are the banal, transparent and painfully short-sighted political motivations for the rash change.

Make no mistake, the damage to the institution of the Senate is catastrophic and its impact on the future of Senate proceedings will likely be an irreversible deterioration.

Dating from the founding of the country, one of the features that made the US Senate unique was the right of each Senator to unlimited debate. From 1789 until 1917 -128 years –  there was no way for the Senate to terminate extended debates (“filibusters” if used to obstruct action on legislation) save for “unanimous consent,” compromise or exhaustion. The right of unlimited debate gave the country and the world some of the best known political oratory, from the likes of Daniel Webster and Henry Clay during the 19th century.

In 1917, the Senate modified its procedures to adopt the first cloture rule (Rule XXII), which allowed a vote of two-thirds of the Senate to end debate on a topic and proceed to a vote. In 1975 that threshold was reduced to 60 votes out of 100 to end debate and proceed on the question. In both instances 2/3rds of the Senate concurred in the rules change.

Since the 1980s, the use of the filibuster to stall nominations and legislation has increased at pace with the increased partisanship in the Senate. It is a thoroughly bipartisan affair with Republicans and Democrats changing roles as defenders of minority rights as their political fortunes have risen and ebbed, with the parties often recycling the arguments of their opponents, once finding themselves out of the majority. In today’s polarized Washington, even uncontroversial legislation must have 60 votes to proceed, and with bipartisanship at an all-time low, if a political party does not have 60 members, the practical implication is that almost nothing gets done.

That there is a problem, is clear enough.

Political veterans of both parties,  who are no longer in the partisan trenches day-to-day, would mostly agree that the President, elected by all Americans, should have the right to staff their Administration as they deem fit, short of nominations that are clearly unqualified for office. That  the filibuster keeps nominations in limbo – some time for years – is a disservice to the American people who at a minimum should be able to count on a well staffed Executive branch.  Worse, much of the delay has nothing to do with the nominee. Often times nominations are held up for petty political reasons regarding a senatorial peeve, policy or issue controversy where the nominee is effectively hostage to larger ideological battles between the White House and the Senate.  This is one area where there should be ample bipartisan ground to protect the rights of the minority, but also handle nominations with dispatch.

But we will never know if that was possible. On Thursday, the Democrats exercised the “nuclear option” trashing more than two centuries of tradition on minority rights.  Here is what happened:

Under Senate Rule 22, adopted nearly 100 years ago (1917), a two-thirds majority is needed to end debate and change the rules. The text is here:

“…And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.”

So, under the rules that existed up until last Wednesday, which both parties have respected for generations, Harry Reid would need 67 votes to change the rules of the Senate and allow executive appointments to pass on a simple majority vote.

The problem is that Reid is 14 votes short.

What to do?

Reid’s solution was to disregard Rule 22 and its century-long history in its entirety, and simply rely on the brute force of the majority’s numbers  to rewrite the rules as Reid, as Majority Leader, deems fit.

Specifically, the Democrats decided that only a simple majority was needed to make a rules change instead of the previously held 2/3rds. It was simply unprecedented.  As post WWII Senator Arthur Vandenberg famously said, “If a majority of the Senate can change its rules at any time, there are no rules.”

Which, Democratic protestations to the contrary notwithstanding, is where we are today.

Why?  Why destroy two centuries of practice that has made the US Senate one of the most unique legislative bodies in the world? Democrats tell us that intolerable GOP use of the filibuster to delay Obama appointments  fairly forced this action, but the record exposes that lie.

As Senator Lamar Alexander wrote in today’s Washington Post, Obama’s second-term Cabinet nominees have been confirmed at about the same pace as those of Presidents Clinton and Bush. This year, the Senate has confirmed 36 of Obama’s second-term nominees to circuit and district courts, compared with 14 for Bush in 2005. Only eight Executive branch nominees had been waiting more than nine weeks for confirmation, and, ironically, two of those were held up by Democratic members.

The real reason is toxically political.

The Obama presidency, for all intents and purposes, is over.

Benghazi, the IRS scandal and revelations of NSA spying have created the foundation of distrust that Obamacare broke wide open. The President has lost the American people, and has no reasonable path to legislative success with the current make-up of Congress. The epic disaster of Obamacare implementation, will likely hurt the Democrats in 2014, perhaps even leading to a Republican Senate. Thus, the President’s only path to governing – actually getting his way without compromise – is through expanded regulatory action that is effectively unchallenged by the Courts – and quick.

In this regard, the Court of Appeals – DC Circuit, has been an epic thorn in the President’s agenda. For instance, the Court struck down Obamacare’s birth control mandate  – forcing religious affiliated organizations to provide birth control and abortion services –  as a violation of the 1st Amendment and conscience protections of the Constitution, and perhaps workse, ruled that POTUS’ “recess” appointments to the National Labor Relations Board (NLRB) fundamentally violated the basic separation of powers between the Legislative and Executive branches and were unconstitutional. SCOTUS is due to hear the case in January 2014.

These rulings, and others like it, keep Obama’s growing and unaccountable regulatory state from functioning in all its unexamined, progressive glory. The NLRB is a good case in point.  Harry Reid last threatened the “nuclear option” this summer,  after the GOP filibustered the President’s re-submission of same NLRB nominees who he had “illegally” recess-appointed. It’s not beyond the realm of possibility that approving nominees who had been previously appointed under a potentially unconstitutional procedures might rankle some in the Senate.

Despite the GOP pique, it was more urgent for POTUS and the Democrats to get the positions filled through the regular order.  With the DC Court of Appeals having cast a shadow on the original recess appointments, Obama and the Democrats needed “valid” confirmations to prevent the Court’s decision from effectively invalidating all administrative decisions (hundreds, maybe thousands)  made with the presence of the tainted Board members; a body blow for unions and other progressive interest groups.

To protect the NLRB and the administrative decisions, Reid struck a deal with Republicans that effectively allowed the new appointments to the NLRB to move forward with a promise not to exercise the nuclear option.  It ended up being a suckers deal – Reid waited less than four months to pull the trigger to get a bigger prize.

The DC Circuit has statutory openings for three more justices. Congress has the power to move vacancies around as work load changes in different regions and the circuit courts that adminster them. By way of context, in 2006, Democratic Senators on the Judiciary Committee including Biden, Leahy, Schumer and Durbin said that, “under no circumstances should new judges be confirmed to the DC court because the workload was half the national average and there were judicial emergencies elsewhere.”

Nothing has really changed since 2006.  Today, the DC Circuit hears fewer cases than it did in 2007.

Yet, President Obama and Democrats are determined to fill those three seats, not because of workload, but to decisively shift the ideological balance on the DC Circuit to ensure that its rulings are more Obama-friendly. This is “Court Packing” for the 21st century, as outrageous as Roosevelt’s bigger gambit in the late 30s, is an affront to democratic governance.

Somewhere, Franklin Roosevelt is smiling.

Having used a suspect rules change to rob the GOP of the ability to filibuster nominees short of the Supreme Court, Obama now has a free hand (at least over the next year) to appoint whomever he chooses. With the DC Circuit soon to be in the hands of a progressive majority, the expansion of the Obama regulatory state can go forward, uninhibited by pesky public opinion or a cranky Congress.

It is the most audacious power grab in recent history.

But it comes at a steep cost.

When Republicans return to the majority – and they will at some point – there is now nothing to stop the GOP from expanding the list of items immune from filibuster to include SCOTUS nominees or more importantly, legislation. If the GOP wins the Senate in 2014, the rash Democratic action last Thursday will make certain that Republicans change the rules themselves to allow a vote on repealing Obamacare by a simple majority. Dodd-Frank, the Keystone pipeline, efforts to rein in EPA’s unilateral interpretation of the Clean Air Act – it’s all on the table.

You can bet the house on it.

But none of this serves the greater public good. The US already has one House of Representatives, it does not need two. But having broken a near-sacred promise, there is little incentive for the GOP to revert to the old rules. Democrats have closed that door.

The President is going to get much of what he wants for the next year, regardless of whether he has popular or political support for it; a troubling, anti-democratic goal in its own right. On the eve of his first win, POTUS told America he would “fundamentally transform” America. The new Senate rules are part of that promise’s fulfillment.

But Obam and the Democrats in the Senate have sacrificed something far more valuable to attain short-term political wins.

America is worse for it.




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