Sunday, February 07, 2010

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 :))


"hold - An informal practice by which a Senator informs his or her floor leader that he or she does not wish a particular bill or other measure to reach the floor for consideration. The Majority Leader need not follow the Senator's wishes, but is on notice that the opposing Senator may filibuster any motion to proceed to consider the measure."

If that is true, the thing to do is to force the Republicans to own Shelby's actions here.

Single holds can be defended (how much is debatable) but at some point the power gives too much power to one person. A filibuster would raise somewhat lesser concerns.

Like a disruptive student hurting the whole class, sometimes grace can be taken too far.

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This subject came up on February 6 at the Reality-Based Community, in Mark Kleiman's posting, "The Shelby Shakedown." A commenter blamed Reid, and Kleiman replied with the following two paragraphs:

A “hold” is a threat to filibuster. Every filibuster now requires three cloture votes to break, with thirty hours of debate before each vote. Ninety floor hours is about two weeks’ worth of sessions, at which no other business can be transacted. At last count, there were 200 pending nominations. Since 400 weeks is eight years, if Reid insisted in bringing all of those nominates to the floor and didn’t bother with any legislation or appropriations, the confirmations would be finished sometime early in the first term of President Udall. And even that assumes that the Republicans wouldn’t stand firm; if all 41 of them vote “no” on cloture (or just don’t show up to vote) no nominee can be confirmed and no bill can pass.

The Senate rules as they exist enable a single thug like Shelby to hold the country to ransom. So we need to change the rules. It can’t be done right now, but it can be done at the beginning of the next Congress.

"Ninety floor hours is about two weeks’ worth of sessions, at which no other business can be transacted."

They could have non-stop debate as they did once for 30 hours to rub Republicans nose in it.

I don't know, but if they actually shut down business for days because of one person, it just might mean something.

But, hey, we can not even try.

I'm with Joe: If Republicans are effectively shutting down Congress in any case, why not go "all the way" and make them move their cots to the Senate and speak on C-Span of their reasons for opposing, say, Dawn Johnson's nomination to head OLC or any other other nominees who lives are being put on "hold" by the thugs and extortionists? (Why should anyone, Democratic or Republican, agree to serve in public office if the price is not only an every more intrusive level of "vetting," but also total unpredictability about whether or not some capricious senator will in fact allow one's nomiantion to come to the floor? But, then, Repubicans really don't seem to believe that we need a government, since everything, save for national defense, should be done in the private sector.

One Senator cannot really filibuster, nor does he speak for the entire party. When he threatens to filibuster everything, as is the case here, then he forces the leadership on both sides to decide to act.

Reid should call up a nomination. If he decides to select one of the more controversial cases (Dawn Johnson for example) likely to get other Republican support, then you get a real filibuster and it is Reid's fault because he wanted it. However, if he selects a completely uncontroversial nomination, then the ball shifts to the Republicans.

The Republican leadership should then disown Shelby. He can still try to filibuster, but he will have to do all the talking himself because when he stops talking, if nobody else wants to talk the vote can be taken. If the Republicans back him, then they now openly take responsibility for the result and have to face the voters in November as obstructionists.

The Republicans made a big deal of the importance of getting to a vote on advice and consent in previous Congresses. That was what the nuclear option was about. It was usually discussed in terms of judges, but the lifetime appointment of Article III judges is a big enough deal to mask the issue. If they won't bring to a vote the nomination of some minor adviser to the President, then they will be shown to be hypocrites.

In October of 2007, Senator Dodd placed a "hold" on the pending FISA reauthorization bill.

Senate Majority Leader Reid found it entirely possible to ignore that "hold".

He could just as easily ignore "holds" placed by Republican Senators, but does not choose to do so.

joel hanes

Two quick points. First, Senator McConnell has backed the holds by Sen. Shelby, thereby putting the Republicans in the position, in effect, of filibustering.

Second, a filibuster actually inconveniences the majority party, not the minority. The minority need keep only a single Senator on the floor at a time. That Senator can hold the floor as long as possible, and also call for a quorum, thereby necessitating the majority to show up with enough Senators to keep the session open.

In short, the "hold" is just a form of filibuster as long as the minority party will support it.

First, fine, force him to underline it.

Second, I'm unsure if there was an assumption a filibuster doesn't inconvenience the majority party. Do you mean here?

Third, great game.

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Second, I'm unsure if there was an assumption a filibuster doesn't inconvenience the majority party. Do you mean here?

Lots of people have called for the Dems to force an actual filibuster rather than just accept the declaration of one, including Prof. Levinson in this comment section. I'm just pointing out that the cost is borne by the majority party when it does that.

It's always possible, of course, that the minority party would pay a cost in public relations in the long run. If the issue were very popular (e.g., repeal McCarran-Ferguson), it might well be worth the cost. In other cases, though, it's hard to tell.

If I were Harry Reid, I'd might try finding a dozen or so extremely popular measures and dare the Republicans to filibuster them. But I'd more likely try to round up 50 votes to repeal the filibuster.

By agreement of all parties, the current Senate operates by consensus. This precludes any actual filibuster. If a question has 60 votes, it will proceed without unreasonable delay. If it doesn't have the votes, it will not come to the floor.

This means that a hold has no effect if the Majority Leader has 60 votes. In the current Senate, he needs only one Republican to agree not to block the nominations. Snowe, Collins, Graham, or Mc Cain (from the Gang of 14) and now even Scott Brown are possible choices.

Obviously the Republicans could stretch out debate on a substantive matter like health care where there really is a debate, but once the Majority Leader can present 60 votes, any attempt to further delay routine matters like the nomination of advisers would break the informal rules of consensus under which the Senate runs. That then opens the door to "nuclear" retaliation. However, there is no reason to believe that anyone is up for "nuclear" war.

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Even if 50 votes will do it, doesn't appear that he has them. And, the issue at hand is basically "popular" -- the filibuster here is blatantly over the top and underlines the excesses of the other party.

So much that as HG notes it is likely some Republican(s) will join in to break it. And, if none do, that only underlines the point.

And, since the Dems one day will be the minority party, the fact it will harm the majority isn't enough for many -- particularly conservative Dems* -- to take the risk.

* Sometimes they are called, wrongly, "centrists," though you can judge for yourself.

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 legislation.

Let's think about that for a second or two...

Harry Reid and the Dems enjoyed these prerogatives when they were in the minority and realize they may be in the minority again some day...maybe soon.

Damn bullies!

Seriously, each chamber of Congress can set its own rules of procedure. If you dislike them, you will need to either vote in a new majority into the Senate which promises to change them or amend the Constitution.

Sandy, your posts on these subjects are beginning to resemble chapters from Don Quixote. Is there anything else in Constitutional law which moves your blogging muses?

May I make a suggestion? If Professors Levinson and Balkin want to have a serious discussion about the issues raised by Senator Shelby’s hold (as opposed to merely blowing off steam or debating whether Shelby is best described as a “thug” or “bully”), how about inviting a guest post from someone who actually knows something about Senate procedure? I am curious about various aspects of the Shelby holds, including when they were placed and why they were recognized if not in compliance with section 512 of HLOGA (which was supposed to eliminate the “secret hold”). Also, I would like an informed perspective on the ramifications of eliminating holds altogether. It seems to me (and I don’t claim to be an expert) that this would be a much more drastic step than merely eliminating the filibuster because the Senate would have to stop doing business by unanimous consent. Is this even practical and, if so, what would it take (an entirely new set of governing rules, I would think) to implement it?

Without in any way defending Shelby’s actions, it seems obvious that the Senate has informal mechanisms for dealing with holds by individual Senators. If it didn’t, every Senate would be hostage to the most irresponsible Senator (and, if that were the case, I would be more worried about Senators who have little or nothing to lose, like Roland Burris). Were any of those informal methods tried in this case, or did someone just see a chance to score political points against “GOP obstructionism”?

Finally, I would note that the President has another option for dealing with Senator Shelby’s holds. It is called the recess appointment. Perhaps he should consult OLC about it (though he might want to suggest that someone other than Marty Lederman prepare the memo). I know, I know, its an “end run around the Constitution.” But that was then . . .

Perhaps our intrepid former backpacker can assume the Sancho role to Tom Trancedo's racial tiltings with wet tea bags.

I wonder why mls singled out Sen. Roland Burris as a Senator he would more worry about as opposed to the Senator from South Carolina. Let's see, what clues are there to reveal mls' worry ... ? Granted, mls says he is not defending Shelby's actions. But why Burris as a target? After all, there are other lame duck Senators. What's so different about Burris?

Shag- lets see, Roland Burris (a) was appointed to his seat by a Governor who was subsequently impeached for trying to sell that seat, (b) was basically disowned by his own party, which tried to prevent him from being sworn in, and (c) was disciplined by the Senate Ethics Committee, which found that he misrepresented or withheld information about the circumstances of his appointment. So I would say he is an outlier, even among lame ducks, in terms of having nothing to lose. If there are other Senators who rival him in this regard, they don’t come to mind. I don’t know why you would think that Lindsay Graham or Jim Demint are better examples.

Of course, which example one chooses to use is entirely peripheral to my point, and I wouldn’t even bother to respond except for the nasty implication of your comment. I recognize that your posts are normally just a series of name-calling, but since you didn’t like it when someone accused you of being anti-semitic, I thought you might show a little restraint in this area at least. Do unto others and all that.

mls concedes with this:

"Of course, which example one chooses to use is entirely peripheral to my point, ... "

that he just wanted all of us to know what he thinks of Burris, with reasons provided later. Of course Burris happens to be a Democrat. Perhaps mls did not select Sen. Ensign of Nevada as an example because Ensign is a Republican. So mls could have made his point without referencing Burris sans explanation.

As to mls' passing reference to the Golden Rule, he might have considered it before putting Sen. Burris in his headlights.

A hold is an informal way of treating to block any and all unanimous consent requests (not filibuster). Because of the arcane rules of the senate that brings business to a halt.

The simple fix for all the procedural problems of the Senate would be to allow any rule to be waived by a majority of the Senate.

"was disciplined by the Senate Ethics Committee, which found that he misrepresented or withheld information about the circumstances of his appointment."

Which circumstance, IIRC, is that he DID in fact buy the seat...

For those interested, some furher reading.

I don't believe the Constitution sets standards for how the Senate should count its votes. I would propose that we give the two Senators from Wyoming one vote each to represent half of the 532,000 citizens in their state, then allocate each Senator a corresponding number of votes using the 266,000 citizens=1 vote rule. Short of abolishing the Senate, which it seems unlikely the Senate would agree to, this could get us on track.

Art. I, sec. 3 gives each senator one vote.

Good news! Senator Shelby has released his holds. The constitutional crisis is averted. The republic is saved.

Yes, nothing to see here. Just yet another -- if more blatant example -- of an ongoing problem that will continue. Oh, he still is keeping in "a few" holds.

Variation of one of the basic laws: never attribute to the constitution a crisis that can just as easily be explained by the incompetence of typical politicians.

This "crisis" is entirely due to the complete inability of Harry Reid to provide any type of statesmanship. He is personally incapable of asking any Republican for help. He was elected to his post by a party majority that would rather see the country go to ruin rather than ask the help of anyone in the other party. In that regard he curiously continues the example of incompetence presented by the enemy leadership in 2001 when the roles were reversed.

The Gang of 14 was a group of rebels who were willing to break with the leadership of both parties and do what was right for the Senate and the country. Harry Reid was not a member of that group. The closest he can come to bipartisanship is to accept a former Republican Senator like Specter who wants to become a Democrat, and even then he used the opportunity to screw him over.

The real thugs in this story are the leaders of both parties in the Senate. They enable a guy like Shelby because if the Senate was on fire they would be unable to lead anyone to the exit, if the exit happened to be on the other side of the room.

Since neither party is inclined to compromise, common sense can be achieved only when the moderates in both parties organize themselves to create the necessary coalition to break gridlock. Maybe that will happen, but Shelby was not a big enough problem of a sufficiently long duration to trigger the kind of rebellion needed for the sane to organize together in the middle of the asylum.

"Variation of one of the basic laws: never attribute to the constitution a crisis that can just as easily be explained by the incompetence of typical politicians."

If it is so "typical," perhaps something needs to be done about it instead of just trusting that some "atypical" politician will step in.

"Typical" legislators burden minority interests. So, we have various checks to protect them. We didn't just trust some good leadership would step in to do the job. And, don't just blame the leadership. They were appointed by the membership.

As to "moderates" -- the Dems have loads of "moderates" who in the Bush years worked with Republicans, including the President. This includes a former member of Reagan's Cabinet and others who would be Republicans in a different age.

I want to see some Republican "moderates" step in and say "stop" here. The Gang of 14 Republicans weren't really rebels. They got nearly all of the judges confirmed, surely the ones that mattered, and I don't see them stepping out now to speak out against the blocks of Obama's nominations. Some rebels.

Oh, how is Specter being screwed over by Reid?

I think "thug" is technically racist--there is (was) a group in India bearing this name of a very close derivative--but this is true of many expressions

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