Saturday, September 23, 2006

Is a filibuster really unthinkable?

Sandy Levinson

One might think that only Republicans inhabit the US Senate, inasmuch as Democrats have seemingly been more than happy to have sat back while McCain, Graham, and Warner ostensibly took on the Bush Administration. But it is clear that that strategy has failed: The troika's Republican loyalties (not to mention conservatism) have taken precedence over a bitter-end fight, and we are left with a disgraceful bill, as explicated in many of the previous posts by Marty Lederman and others.

No one can seriously believe, with regard to the future welfare of the United States, that the bill MUST pass beforee the election in six short weeks. The pressure to pass the bill now is entirely an artifact of Karl Rove's re-election strategy for a Repubican Party that has deservedly lost the trust of the American people. (The most recent ratings for Congress are somewhere in the low 20's; i.e., over three-quarters of the American people disapprove of the present Congress, roughly the same percentage that believes the US is headed in the wrong direction.) Unfathomably, the Republicans retain a slight lead in the "better able to fight terrorism" department, though I am curious if this will survive tomorrow's lead story by Mark Maezetti, "Spy Agencies Say Iraq War Worsens Terror Threat." I assume that the Administration will try to ferret out these latest leaks of embarrassing classified information, the import of which is that Iraq has been an unmitigated disaster with regard to staving off terrorism and terrorists. It will, I trust, be far harder to dismiss the "consensus view of the 16 disparate spy services inside government" than, say, yet another eloquent column by Frank Rich that should bring any American to tears about the truly criminal incompetence of Donald Rumsfeld.

Even if it is expecting too much of the frightened Democrats actually to oppose the vaunted "compromise"/capitulation on grounds of principle, is it really too much to say that legislation that so fundamentally affects the future of this country in manifold ways--see, e.g., statements by Colin Powell and many other retired military people and other "respectable" sources who can scarcely be described as bleeding-heart liberals--actually needs what Congress purports on occasion to provide, i.e., serious hearings and even genuine debate? At the very least, one might expect such hearings to explore what is actually in the bill with regard to which methods of interrogation are "criminalized," which prohibited (even if not criminalized?), and so on, not to mention getting the professional opinion of (probably former) State and Defense Department officials as to the costs, in the international political system, of going our own way with regard to defining the Geneva Conventions and Common Article 3.

So why shouldn't we (i.e., people who maintain some loyalty, however foolish, to the Democratic Party) expect "our" leaders at least to filibuster the bill until after the election? The current atmosphere is precisely like that during the summer of 2002, when Tom Daschle made a disastrous--is it too much to call it, at least with the benefit of hindsight, "contemptible"?--decision to shut down any debate about Iraq because of a belief that Bush owned the issue and the Democrats had to change the subject. We know what happened then.

So who might take the lead in calling for a serious debate instead of this unseemly haste to pass legislation that almost no one has read (and those who have read it quite literally do not understand exactly what it means)? Let me make the audacious suggestion that the person best poised to do so is Joseph Lieberman. He is almost uniquely positioned to be taken seriously. It would, I strongly suspect, assure his re-election (by bringing back at least some now-disgruntled Democrats), and the Republicans could scarcely turn around and accuse him of being a softie. He doesn't even have to promise to vote against the final bill. For all I care, he can say that he is inclined to support it, but only AFTER THE ELECTION. All that he needs to say is that rushing to pass the bill before it is genuinely scrutinized is not the way a respectable country makes such fundamental decisions about its core values.

I am genuinely curious whether the right-wing critics who post on Balkinization really believe that this IS a model of legislative deportment. Do they believe that the American Enterprise Institute is harboring a dangerous radical in its midst named Norman Ornstein and that he should be fired for expressing dismay about the way Congress is behaving?


There are numerous possible "hang fire" scenarios on this bill. Watch Senator Specter on the habeas issue, a preview during Monday's hearing. He and Leahy might do a tag-team thing. I doubt Lieberman will step in to initiate a delay in taking up the measure, or in voting on it.

The timetable is tight in any event, especially so if there are amendments. Assuming Frist pushes to get a vote via filing a cloture motion, I haven't attempted a nose count of Senators who would be willing to vote against cloture, or against the bill. There are the usual "fearless" ones, Feingold, Boxer, Harkin, Feinstein ... but they number 20 or less.

There are also another handful of Republicans who signed onto Warner's version last week - Sununu, Snowe, Chafee, Lugar, DeWine, Smith, Hagel. They haven't signaled agreement with the so-called compromise. All of them will swing based on the way the wind is blowing, without regard to the substance of the legislation - as long as they believe the smoke they are blowing will fool enough of "their" voters. Anyway, my bottom line is agreement that a filibuster is possible, and maybe likely - but the key players and counts aren't clear yet. I personally think that the bill is complex enough and important enough that withholding a vote on the basis of "need more time to analyze it and think about it" is a principled stand. In other words, I think voting "no" to cloture is perfectly appropriate for this bill - unlike my firmly held belief that using cloture to block something that one KNOWS he is dead set against is an abuse of parliamentary procedure, and is a practice that should bring ridicule on the
practitioner. See judicial nominations. But that's another subject.

It'll be a very interesting week in the Senate, that's for sure. I believe a failed cloture vote is a significant possibility - at this point my gut tells me it's the most likely outcome.

Sandy is right. Lieberman is probably the only Democratic Senator that has sufficient credibility on this issue with the mainstream of America.

Nevertheless, it probably isn't enough. I doubt he could honestly convince enough people to take a hard look at this bill. If somehow he could shoehorn some prominent Republican, then his chances would shoot up. But, Bush has successfully co-opted the McCain et al., so I doubt there is much of a chance of success.

As to your Norman Ornstein point, he can have his opinion. Yes, he is a respected Congressional watcher, if not one of the most respected. But, it doesn't mean he is always right.

gregpolitics said...

I think a filibuster could be politically sutainable if it were viewed as an act of principle rather than politics. Dems could say that they stood back and waited to see what would happen when McCain, et al objected becuase their concern was the principle not the politics but now the principle is not being sustained and so further action is required...

The problem with this track is that by sitting back and letting the Repubs duke it out, the Dems will now have a tough time trying to assert themselves into the debate. And of course any Democrat opposition will be characterized as "playing politics" by the GOP sycophants in the media. Rove sure knew what he was doing when it setup this faux revolt.

To Henry - if the Sneaotr know enough the bill to be against it, then the Senator should vote YES to cloture, and NO to the bill.
Your intimation that I make some sort of comaprative analysis betwen parliamentary process and torture does not represent my sentiments.

A YES to cloture is not always tantamount to a vote for passage - although it is usually presented that way, and most often acts that way. Cloture (if the motion is made) is also a route to REJECTION of the bill.
If cloture is called for, a failed cloture motion leaves the bill or matter as pending business, and does not dispose of it one way or the other.
I just prefer arguments on the merits to winning by abuse of the process. I appreciate that (many) others feel differently. Viva la differance.

"Abuse of the process" is an indefinite phrase. If your use of the phrase implies "permitted by the rules," them I have to concede that the use of a NAY cloture vote to block consideration of a pending matter than one knows one is opposed to is not abuse - it's not abuse because the rules permit it.
But the nominal purpose of cloture is to make sure a sufficient number of the deciding body have reached their position via the application of reason - cloture is a device to facilitate a proper expression of the will of the majority, and a proper expression can't be done until enough of the members have reached their reasoned decision. If everybody know how they are going to vote, then get on with the vote.
For the torture issue, imagine the situation reversed, where torture is legitimized by statute, and the Senate is considering revoking the law that permits torture. Would you support cloture to prevent the vote? Would it be okay if less than a majority held up the vote, on the grounds that they wanted to keep torture? I bring it up only to say that at some point, process is important. Better to debate openly, on the merits.
Which, much as I wish it would happen, isn't happening, and generally doesn't happen.

Roberts Rules of order is one place that the nominal function of cloture is discussed. It's where I first read of the function, as opposed to just the presence of the device. The Senate has no "I move to take the vote" facility - cloture substitutes for unanimous consent.
As with any rule, it can be used and abused. The Senate has been known to set 60 vote hurdles to pass legislation just to get agreement to take the vote. See UC Agreement regarding the stem-cell research bills for an example. There's nothing to say the Senate can't provide that a 90% vote be required to pass a law - or to let 10% of them pass laws. But those "fringe" areas naturally strike people as odd, because we're hard-wired toward majority vote for most things, and supermajority for selected others (treaties, amend constitution, etc.).
I fully expect the Senate to continue to abuse cloture. I'm just stated my (low) opinion of the practice.
What you are implying is that a majority of Senators approves of torture. That (approves of torture) is inflammatory shorthand, and unless the Senators express the meaning of "torture" in more definite terms, they'll be limited to a "do too - do not" debate.
I expect mostly a smoke screen. Business as usual.

May I say that I find it a bit strange that a discussion of the propriety of torturing other human beings and/or leaving those declared "enemy combatants" to incarceration for life without the slightest semblance of due process (unlike those relatively few who will be actually tried) has morphed into a discussion of the ethics of filibustering. Not, of course, that it isn't an interesting discussion....

Well, given the title of the post, a discussion of "filibuster" was inevitable.
Had I not been tangentially accused of justifying torture in order to honor parliamentary process, my first post would have been my last.
I'll leave it at that. Toodles.

"Well, given the title of the post, a discussion of "filibuster" was inevitable."

Fair point! Let me join many politicians and the Pope by apologizing if I caused any offense. Moreover, a rereading of the various postings certainly indicates that the debate about torture was never far removed from the debate about the ethics of "taking advantage" of Senate procedures.

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