Is Harry Reid The Enabler of Bullies and Extortionists?

Sandy Levinson

My previous post condemned Sen. Richard Shelby (R-Ala.) as a "thug" and an "extortionist," a view I have not changed one whit, save that I have been persuaded by a correspondent that "thug," with its connotations of violence, is a less fitting word than "bully," so I have changed the title accordingly and am changing all uses of the word "thug" and its variants to "bully" and its variants. (Interestingly enough, no one has, to my knowledge, actually defended Shelby, including the conservatives who regularly comment on Balkinization postings.) But, of course, Sen. Shelby would not able to affect his bullying and talents for extortion unless he was enabled by his colleagues, and his primary colleague, paradoxically, is the Majority Leader of the Senate, Harry Reid. After all, as some discussants have noted, "holds" are in no way a "rule" of the Senate in the way that the filibuster, alas, is. It appears to be what philosophers would call a "convention" or a "practice," which works only so long as the leadership allows it to. (I stand ready to be shown wrong in this surmise, but it would require something equivalent to Rule 22 of the Senate, referring to debate and cloture.)

So the real question is why Harry Reid doesn't do whatever he can, NOW, to eliminate the power of such bullies and extortionists as Sen. Shelby (and, of course, Democratic senators as well) by elimininating the power of Senatatorial monomaniacs to place "holds" on nominations or legislationi. I despise the filibuster as well, as readers know, but filibusters have the virtue of being public and, at least on occasion, based on genuine principle. The latter was most certainly true, for example, of Democratic opposition to John Bolton as the US Ambassador to the UN. By stipulation, I will grant the possibility that at least one of the Republican filibusters might meet the same condition. (And, given the bizarre allocation of voting power in the Senate, it is true on occasion that a "minority" filibuster can actually comprise senators representing a majority of the population, though that is not currently true vis-a-vis Republican filibusters.) No "democrat" can be content simply with establishing the principle that 51 senators (who could, in theory, represent less than 25% of the total US population) should necessarily rule.

Holds, of course, are entirely secret, with no accountabilty until the identity of the "holder" is leaked. And they are, by definition, as undemocratic as could possibly be imagined insofar as, if honored, they give any one of 100 senators the power to prevent a president from filling his administration. The same thing is true, of course, of the idiotic habit of allowing one senator to call for the reading of 1000 page bills for the sole purpose of delaying the work of the Congress.
(One might agree, incidentally, that is is desirable that members of Congress be aware of what they are in fact voting for, but only a lunatic could believe that requiring the reading of legislation is an effective means to that end, unless one requires in addition that every senator be present while the legislation is read and then that they be able to pass "pop quizzes" given througout the readings, on penalty of losing their vote if they flunk the tests.)

If Sen. Reid is unwilling to crack the whip and tame such bulliess and extortionists as Sen. Shelby (and similar Democrats, should any of them be "holding"), then he is no better than the owner of a dangerous dog who lets him run without a leash and then expresses shock, shock, that the dog bites and even kills an innocent child. We properly hold the owner liable. There are all sorts of reasons to hate the Republican minority in the Senate, but they are allowed to get away with at least some of their mad-dogdom only by sufferance of the majority and its leadership. Democrats should demand that their ostensible "leaders" act. If they don't, they shouldn't be surprised to see their "followers" looking elsewhere for leadership (perhaps at a "coffee party," since "tea" is taken :))


Posted 5:07 PM by Sandy Levinson [link] (31) comments

Richard Shelby, an extortionate bully

Sandy Levinson

NOTE: PLEASE SEE THE POSTING ABOVE EXPLAINING THE SHIFT FROM "THUG" TO "BULLY" IN THE TITLE LINE AND THE REWRITTEN SENTENCE TWO BELOW.

I apologized to Ben Nelson and even, kind of, to Joe Lieberman, for earlier referring them (in a post that I then deleted) as "thugs." "Thug," with its connotation of a willingness to use violence, may be too extreme, but certainly the word "bully" is appropriate for Richard Shelby, who, as Jack (and the Washington Post) described below, is holding up the Senate in order to gain what Chicago-types call "rents" from the national government, i.e., a presumptively unnecessary venture to provide jobs for his constituents in the name of honoring "national defense." Yes, I know that politics involves lots of logrolling, compromise, and all of that. No one is pure, and money, including earmarks, as Jesse Unruh once said, is the mother's mild of politics. That being said, Senator Shelby is willing to destroy the United States as a functioning government--given that it really is necessary to have heads of agencies and the like--in order to gain his objectives. We might even describe him as a terrorist instead of a bully.

The point is that it is incumbent on the Senate to do something about this, and NOW. It is not simply a question of shaming, for that assumes that bullies are sensitive to shame. He should be formally censured for "abuse of the rules of the Senate" and, if he refuses to withdraw the holds, expelled from the Senate. (Note that the Senate has the same plenary authority to expel as to set its own rules.) Perhaps we should be grateful to the bullying Senator from Alabama, for he is indeed bringing the contemporary crisis of the Senate, what even more moderate establishment types like Norman Ornstein and Thomas Mann have labeled "The Broken Branch," to a boil. If the Senate doesn't act, then there should indeed be mass action by the public that is seeing its government disintegrate in front of its very eyes (if only they can look).

Labels: no

Posted 4:14 PM by Sandy Levinson [link] (40) comments

Senator Shelby and the Emerging Constitutional Crisis of our Time

JB

Senator Richard Shelby a Republican Senator from Alabama, has secretly put a hold on all executive branch nominations by the Obama Administration. He wants earmarks for some pet projects in his home state. The hold is secret no more, since Shelby's identity has been leaked to the press, and Shelby himself has come forward with a statement defending his decision to place an unspecified number of holds on President Obama's nominees, and, in effect blaming President Obama for making him do it.

Apparently a blanket hold of this sort has never been attempted before, but in effect all Shelby has done is add together a series of individual holds.

This, together with Scott Brown's election in Massachusetts, should be a wake up call to President Obama that he faces a political and legal crisis of the first order. The Senate's rules, which are not required by the Constitution, need to be reformed immediately or else day-to-day governance threatens to become impossible.

This crisis is not yet technically a constitutional crisis, because the Senate's rules are not constitutionally required. But if the President does nothing, and argues that there is nothing he can do to persuade the Senate to change its mind because the Senate gets to determine its own rules under Article I, section 5, we face what Sandy Levinson and I have called a Type Two constitutional crisis-- in which acceptance of the political rules of the game sends the country over a cliff.

Article IV of the Constitution requires that the United States guarantee a republican form of government-- "republican" as in representative and subject to majority rule, not "republican" as in perpetually controlled by a ideologically cohesive minority in the Republican Party.

The evolution of filibuster and hold rules (and secret hold rules) has fatally undermined the federal government's ability to function as a republican form of government. The constitution is not, and never has been, a purely majoritarian form of government. It contains many valuable checks and balances. However, to the constitutionally required features of bicameralism and presentment, equal representation in the Senate, and judicial review have been added unnecessary non-constitutional Senate rules, customs, and practices that make the federal government dysfunctional. The toxic combination of these non-constitutional rules, customs and practices has only emerged in the past two decades. Today they are being used by Senate Republicans. If the Democrats lose the Senate, and the Republicans gain the White House, they will be used by Senate Democrats to hamstring a future Republican President. In either case, governance will be impossible. There is no reason to think that Democrats in the minority will not use the same practices that Republican Senators now employ.

It is the duty of the President, and the Vice-President, as President of the Senate, to push the Senate toward amending its rules if the members of the Senate will not do so on their own.

The President should make clear to the public that the situation in the Senate has reached crisis proportions, and point to Senator Shelby's latest escapade as a perfect example of the selfishness and insanity that now overwhelms the Senate. Senator Shelby needs to be called out and shamed repeatedly as an example of how a rational legislative process should not work.

Then the Vice-President, as President of the Senate, needs to use his authority as chair of the Senate to insist that the Senate rewrite its rules, or the President of the Senate will begin making rulings from the chair designed to change how the Senate operates in practice. Each of these rulings will be subject to challenge and to majority vote. The Senate may well reject many of the chair's rulings, because individual Senators have grown used to having the power to hold the government hostage to their parochial concerns, and rational change will not come easy to this institution.

Whether or not any of these rulings are upheld, however, they will focus attention on the fact that the greatest source of government's inability to deal with the country's current problems is the United States Senate. The country needs to be focused on the fact that our dysfunctional Senate is now the greatest roadblock to constitutional democracy in the United States.

Rahm Emmanuel is quoted as saying that one should never let a crisis go to waste. Senator Shelby's stupid and selfish action has revealed a crisis in governance that has been forming for two decades. President Obama should not waste this moment. He must make an example of the Senate's rules, and use all of the political authority of his office to push for change.

If President Obama wants hope, he will have create the conditions for hope. If he wants change, he will have to be the moving force for change.





Posted 12:37 PM by JB [link]

Why voting structures matter

Sandy Levinson

The New York Times reports that Democrats are "worried" about their 33-year-old candidate for the Senate in Illinois, who won the primary on Tuesday with a ringing 39% of the vote. For all I know he will be a terrific candidate and a wonderful senator (if elected), but what can be said beyond reasonable doubt (as Republicans are apparently already saying) is that 61% of the Democratic electorate preferred someone else. Perhaps Alexei Giannoulias would have prevailed in the runoff, but, obviously we'll never know. But what I think we can know is that runoff systems, though not perfect, are more likely to produce a candidate acceptable to the majority (which some people say is what "democracy" means) than first-past-the-post systems like that in Illinois (or in Texas, which re-elected Gov. Rick Perry in 2006 with a whopping 37% of the statewide vote). If the Democrats manage to lose the seat in November, they might consider blaming an election system that is quite literally designed to stymie "majority rule" save in races where there are only two candidates. (There were three plausible candidates in the Democratic primary, including an attractive "reformer" who received about 33% of the vote, just as there were four such candidates (or at least 3-1/2, depending on what you think of Kinky Friedman's candidacy) in Texas in 2006.
Posted 11:57 AM by Sandy Levinson [link] (15) comments

Missing the Forest for the Internet

JB

Robert Wright has a very thoughtful post on how the ability to target audiences cheaply in the digital age to garner political opposition and spread (mis)information has made politics increasingly difficult. He argues that this makes our political system less republican (i.e. representative) and more like a dysfunctional form of direct democracy.

Wright argues:

Had technological change stopped in 1950, President Obama would be basking in the glow of victory. Insurance and pharmaceutical companies and labor unions posed challenges to health care reform, but their challenges were manageable, and as of a few weeks ago Obama had found a sausage recipe that these groups could stomach.

There's a lot to Wright's argument. Surely the Internet does facilitate new methods for demagoguery. It also allows groups to form more easily without traditional political intermediaries or traditional intermediaries for the formation and articulation of public opinion. Indeed digital technologies allow new kinds of intermediaries to replace older ones and thus create new centers of political power. (Thus, this is not so much a move toward direct democracy but rather a displacement of older forms of mediation and articulation of popular preferences and popular opinion by newer ones).

But the reason why Obama is not basking in the glow of a political victory in health care reform has little to do with the Internet or the trends that Wright identifies. It has to do with the Senate's filibuster rules. The early 2000s not only changed political communications-- Wright's concern--they also produced a change in how often Senators were willing to use the filibuster (and other delaying tactics like anonymous holds) to impose a super-majority requirement.

This change is a far more important factor in explaining the political problems that Obama now faces than the Internet. The major problem with political reform today is a recently created structural impediment to democracy-- a super-majority rule in the Senate for almost every important piece of legislation--and not, as Wright suggests, too much democracy.





Posted 6:15 PM by JB [link]

What Can Congress Do in the Wake of Citizens United?

Heather K. Gerken

Following up on Ian's and Sandy's posts about what Congress can do about corporate political spending in the wake of Citizens United, I offer my take on the constitutionality of three of the main proposals circulating on the Hill in testimony I submitted to Congress yesterday.
Posted 1:49 PM by Heather K. Gerken [link]

The Next Citizens United

Marvin Ammori

Last Friday, Cablevision filed a cert petition to the US Supreme Court in what may be the next Citizens United.



Citizens United, of course, in President Obama’s words, “opened the floodgates” for corporate money to overwhelm the political system. Almost 70% of Americans believe it hands even more power to lobbyists. Opponents of Citizens United (and previous cases leading to it) are considering and introducing remedying legislation.

But, you respond, the Internet remains. Citizens United’s infusion of corporate money will largely go to campaign TV ads and films. The Internet enables speech—through blogs and low-budget, individual videos that can go viral. It enables associations—as individuals find each other and form groups around issues and candidates. It can help aggregate small donors.

The Internet might not act as a perfect counterbalance, you say, but it’s a start.

That’s true. Unless this Supreme Court interprets the First Amendment to eliminate the openness we’ve always expected of the Internet. That is, the Internet was historically open and free to all users because of traditional telecommunications laws (Lemley and Lessig explain). The Bush II administration deregulated access to the Internet—lifting laws applying to AT&T (the largest donor to federal campaigns of any company) and Comcast. Deregulation for Internet access then worked about as well as deregulation of the finance industry—it’s been an utter disaster, placing our nation far behind other nations in terms of the speeds, availability, and cost of Internet access.

Deregulation also has threatened the openness of the Internet. Carriers like AT&T and Comcast have expressed a desire to “manage” other people's Internet sites and technologies however they want and to extort fees from providers of applications and content. This would undermine the traditional openness of the Internet. AT&T could decide to limit the videos available on YouTube or on a “conservative Youtube”—or could simply require everyone seeking to provide TV programming through the Internet to get permission from AT&T to be on the Internet. AT&T could impose a surcharge on every iTunes download—or every political donation—and charge campaigns and corporations for every political ad. As AT&T’s former CEO claims, the Internet is “their pipes” and AT&T doesn’t want anyone using those pipes without paying AT&T tribute.

In response to this threat to democracy, advocates and enlightened lawmakers have fought since the Bush II deregulation for a “network neutrality” law to keep the Internet open on all platforms, wired and wireless.

On Monday, the President reaffirmed—again—that he is a “big believer” in network neutrality, no matter how many angry lobbyists the carriers throw at him or the FCC. (He said it more politely, but unmistakably.) The President was answering a question about network neutrality—the number 1 question about the economy uploaded by users for an innovative online interview with the President.

How could the courts screw this up too? If the consumer advocates, scholars, and lawmakers can actually succeed in defeating the lobbying might of AT&T, Verizon, and Comcast, then the courts could overturn the result. You might think that the public’s free speech rights are implicated in their ability to use the Internet to communicate with whomever they want, however they want, through the Internet. But to these courts, the First Amendment belongs to powerful corporations.

Cable lobbyists have argued that cable and phone companies have a First Amendment right to block speech on the Internet. Really. They argue that a case called Turner Broadcasting, a landmark decision from 1997, imposes heightened constitutional scrutiny on any rule impinging on the carriers’ “editorial discretion” to block websites in offering access to the Internet. So even though bloggers, video-makers, and online news outlets might make editorial decisions, the cable or phone company is the ultimate constitutional “editor” of the Internet with inviolable free speech rights.

They argue Turner would likely impose intermediate scrutiny on any law meant to ensure diverse speakers online—namely an Internet openness rule. In doing so, Turner would not, however, promote the wide diversity of diverse and antagonistic speakers—the First Amendment’s most “basic tenet,” according to Justice Kennedy, author of Citizens United. Rather it would succeed in promoting the narrowest diversity of “speakers” controlling American speech—AT&T, Comcast, Verizon, Time Warner Cable, above all others. (I've discussed this elsewhere.)

The Cablevision petition for certiorari asks the Court to overrule Turner. Many (like me) view Turner as akin to Lochner, for imposing heightened scrutiny for rules where far more deference is required. But the cable industry views Turner as too soft a hammer. Rather than intermediate scrutiny, the industry seeks strict scrutiny for all rules. The industry is already pointing to Citizens United for its arguments, encouraging the Court to overrule another key speech precedent.

I could try to point to a silver lining. First, I doubt the Court needs to overrule Turner to reverse the FCC, as Cablevision has decent facts for an arbitrary and capricious challenge. But this Court doesn’t always miss an opportunity to transform the law.

Second, I believed that Turner might have applied to cable operators in providing cable TV services, but not to operators when providing Internet access service. This is because Internet access, like phone service, was historically subject to common carrier rules, removing all “editorial” discretion from Internet access providers, without implicating the First Amendment.

But I am now more skeptical of that silver lining, being reminded of our courts. A few weeks ago, I was involved in a case involving the FCC’s authority to impose a landmark network neutrality order on Comcast, for blocking peer-to-peer transfers. Comcast had not made a First Amendment argument on appeal; in the opinion below, the (then-Republican) FCC had rejected the First Amendment argument in a mere, belittling footnote, explaining how an open Internet obviously promotes the values of the First Amendment for all Americans. Nonetheless, a few minutes into Comcast’s oral argument before the DC Circuit, a judge asked: “cable operators have some First Amendment rights, and I don't see that playing out in this case at all.”

The Cablevision case is likely the first step on this path to "playing out" the First Amendment arguments--for carriers to block or interfere with Internet speech. We’ll see if the Supreme Court uses the Cablevision petition as an opportunity to step towards vindicating the “First Amendment right” of carriers to dominate all our channels of democratic discourse--from the TV of unlimited corporate expenditures to the Internet of unlimited carrier-control.
Posted 12:16 PM by Marvin Ammori [link] (1) comments

Is Wartime a time to end Don't Ask, Don't Tell?

Mary L. Dudziak

As the Obama Administration moves (slowly) toward repeal of Don’t Ask Don’t Tell, one argument in opposition is that the nation is at war, and significant changes in the military should not take place during wartime. One response to that point is that all hands are needed during heightened military deployments, and it harms American national security to dismiss trained soldiers. But there is a more fundamental reason that the argument against change during wartime doesn’t work: there is no end in sight to the war on terror. And endless war cannot be a reason for permanent stasis in military policy.

The no-change-during-wartime argument is an example of conventional thinking about war and American society. “Wartime” is imagined to be a temporary condition. It is a special kind of time. Wartime, by definition, is preceded and followed by “peacetime.” American history is thought to consist of the movement from peacetime to wartime and back again. In this conceptualization, wartimes always comes to an end.

This idea that wartime is by definition a temporary time is an essential ingredient of the argument that social change shouldn’t happen in wartime. This is presented as an argument that does not challenge change itself, but simply asks advocates of change to be patient. Change can come after the war is over.

But what if there is no end to war? (Continued after the fold.)

United States military deployment has been on-going, at least since World War II. There is a disconnect between persistent American military engagement and the idea that “peacetimes” continue to exist, reflected in an awkward literature on war in “postwar” America. David Halberstam, for example, gave his book about war during the first Bush and the Clinton administrations the ironic title War in a Time of Peace.

Desegregation of the armed services is an example of social change during a time of military engagement, not during “peacetime.” Although V-E and V-J days had long passed by the time President Truman issued an executive order calling for military desegregation in 1948, World War II itself had not formally come to a close. The U.S. occupied Germany, Japan and other nations, and the Supreme Court continued to uphold exercises of Congress’s war power. World War II slid into the Cold War, which included the use of the Air Force during the 1948 Berlin Airlift. And as has been widely noted, desegregation was accomplished in the Army in the context of the need for ground troops in the Korean War.

Even if we could find ways to bound previous wars in time, the “war on terror” has been defined in a way that confounds the idea of an end point. It is not a war against a nation-state but against an ideology, suggesting that this state of war might only end when we reach an end of ideas themselves.

The Supreme Court has acknowledged the difficulty of our current war era’s temporality. Guantánamo detainees might be held for the duration of the conflict. But as Justice Kennedy suggested in Boumediene v. Bush, the present conflict “if measured from September 11, 2001, to the present, is already among the longest wars in American history.”

In the context of endless war, an argument that change must wait for peacetime is not an argument for patience. It should be understood for what it is: an argument to keep discrimination against gays and lesbians in the military in place. Scholars have often argued, however, that wartime has been the context for the expansion of equality rights. In that sense, expanding equality for gays and lesbians during wartime would not be an aberration, but instead would be in keeping with American tradition.

Posted 6:30 PM by Mary L. Dudziak [link]

No Respect: Brian Leiter on Religion

Andrew Koppelman

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In a paper I’ve just posted on SSRN, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.

I will add here (for the benefit of those who aren’t going to look at the paper, where I also say this) that he has been spectacularly generous in reading multiple drafts and helping in the development of a paper that is very critical of his work.
Posted 3:11 PM by Andrew Koppelman [link]