How to end obstruction by filibuster

The reason the Senate now requires 60 votes to pass a law is because of unforeseen consequences of a long-ago change in Senate rules implemented by Robert Byrd, I learned from Ezra Klein’s blog. Used to be, a filibuster ground all work to a halt. It was the nuclear option—which is why it was only employed in matters of the gravest importance, such as when Strom Thurmond and others wanted to make sure African-Americans remained second-class citizens.

Byrd introduced “dual tracking,” by which the Senate for the first time became able to consider more than one bill at a time. Suddenly, a commenter of Klein’s writes,

filibusters became almost pain-free. A Senator simply had to announce they intended to filibuster and the Majority Leader would use his dual track authority to move to other business and get around the road block. Over time, most leaders simply did a whip check and declined to schedule a bill if a filibuster was possible.

Klein adds,

Both Hill experts and political scientists argue that the reason [this has been allowed to stand], basically, is that…ending the dual tracking would be the same as shutting down the government. It would be a high-stakes showdown over a Senate rule change, which is not something that many in the Senate have evinced much interest in attempting.

I’ve got a simple solution: The Senate Majority leader declines to use dual track authority, and forces the other side to filibuster.

There was a time, before C-Span, when Senators opposed to some bill they found particularly heinous literally held the floor for 18 or 24 hours at a time. Let’s see them try that today. How do you think it’d look? Like Newt Gingrich shutting down the government in 90-whatever-it-was, that’s how.

Here’s another way to get around a filibuster of the health-care bill: The Majority Leader brings to the floor another bill the 40-vote group won’t vote for. Say, a 95% income tax on Senators from the minority party. A ban on Viagra.

Then what are they gonna do?

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American democracy, R.I.P. 1776-2010

Say goodbye to the American experiment in democracy. Thanks to the Republican-appointed majority on the Supreme Court, as of today it’s of Citibank, by ExxonMobil, and for Duke Energy.

“The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation,” wrote Justice John Paul Stevens in the dissenting opinion. And that’s putting it mildly.

As of today, there is literally nothing to prevent Wal-mart from spending a billion dollars on a candidate it likes, or against a candidate it doesn’t like. One who favors allowing workers to unionize, for instance. Goldman Sachs could spend its entire bonus pool on defeating any member of Congress who votes for derivatives to be regulated (or bonuses limited).

That’s because of the Court’s ruling in Citizens United vs. FEC. The details of the case can be read here, but the effect is this: Unlimited campaign contributions from corporations.

Conservatives will say that unions have the ability to do the same. That’s true. But unions don’t have as much money as corporations, and they never will. In fact, corporations could buy politicians whom they’d send to Washington to outlaw unions. The reverse is impossible. (The unions would sue, citing freedom of association, but the Supreme Court, if it can overrule several longstanding precedents, fundamental principles of logic, and a century of law—as it did today—would probably just rule against them.)

Associates like Alito, and Chief Roberts, repeatedly stated in confirmation hearings their profound respect for the principle of stare decisis, or “the decision must stand.” Roberts: “If an overruling of a prior precedent is a jolt to the legal system, it is inconsistent with the principles of stability…Those precedents that were overruled [e.g., in Brown vs. Board of Education] had proved unworkable.”)

Today they were proven liars. They decided that the decision reached in a previous case, known as Austin, as well as parts of decisions that have stood for much longer, must not stand.

As Justice Stevens wrote in the dissent, the Court in the past has accepted

special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907 [and] …unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” [FEC v. National Right to Work Comm.], and [has] accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.”

The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin. Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law.

What’s their reason for making this exception? Because one of their own—the most right-wing (“conservative” is a disservice) member of the court since the 19th century, Antonin Scalia—wrote three years ago that

Austin was a significant departure from ancient First Amendment principles.

In other words, “because we said so.”

Overturning Austin, besides departing from the significant precedent it rests on, relies on the notion that the speech of a corporation is equivalent to that of a human being because a corporation can be composed of an “association of citizens.”

But a corporation can also be composed of an association of non-citizens, or of non-residents to the area whose representative it is helping to choose, or of people who do not agree with the course of action undertaken by the corporation in a particular election. Or, indeed, of any group of individuals who decides to sign a piece of paper, open a bank account, and endow it with an unlimited sum of money, which it can as of today spend on campaign commercials and donations to candidates. This the majority seems to have forgotten, or decided to ignore.

The Court did not have to rule so widely in order to decide for the appellant in this case. Citizens United is not a corporation, but a non-profit. The relevant part of the statute barred it from running what amounted to a campaign ad within 30 days of the election. It wasn’t “banned” from engaging in speech, or even this kind of speech.

The restriction was very specific, but the majority decided to reach far beyond the issues raised by this case in order to make a much broader ruling affecting a much larger class of entities. The difference is known as that between “partial” and “facial” rulings, and as Stevens noted in his dissent, “This Court has repeatedly emphasized in recent years that “[f]acial challenges are disfavored.” 

So a Republican-majority court isn’t even holding to its own precedents. Its overruling itself, in this one instance, because it feels like it.

This is the definition of judicial activism, which conservatives so like to decry—as a matter of principle, they say. Except when it goes against them. Bush v. Gore was the exact same thing, as was the overturning of a 1911 Supreme Court case in 2007 and a racial discrimination case it ruled on that same year, in which it essentially said that racial discrimination in education is no longer a problem (despite mounds of data to the contrary).

The majority in the Citizens United decision, in addition to favoring both this abandonment of precedent and the belief that a corporation is human, declares its belief that restricting some forms of corporate involvement in the electoral process during certain time periods “fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process.”

How can anyone who has read a newspaper in the last forty years believe this to be true? The Senator who used to represent Washington was known as “the Senator from Boeing.”

Moreover: If there is no corruption in the electoral process, why do corporations seek to influence it? They don’t get a tax write-off, and by law they act only in the interest of their own growth, profit, and extension.

You can go one of two ways on this:

Either you recognize that corporations are influencing the electoral process—in which case, by the majority’s own reasoning, it merits restriction—or you have to prosecute any corporation that donates to candidates, or buys campaign ads, or pays a lobbyist, for wasting shareholder money. You can’t do neither.

And if speech by a corporation cannot be banned in any context, as the Court ruled today, how is bribery illegal?

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Scott Brown's win: No vote for a Republocrat is a vote for change

Massachusetts voters are in for another disappointment when Scott Brown takes office. They voted, according to conventional wisdom, for “change” by electing a member of the non-ruling party to fill Ted Kennedy’s seat. But Brown—like Coakley, like Kennedy, and like Obama—is part of the same corrupt, broken system that voters are supposedly rejecting.

Just fourteen months ago, Massachusetts and most of the rest of the nation famously voted for “change,” too. But what’s changed? Corporations still write the laws and the leader of the Democratic party never met an issue he wouldn’t capitulate on.

How many failures of the politicians to actually effect change, and subsequent disappointments of the people who nominally elect them, is it going to take for people to learn that Republicans and Democrats aren’t the answer? Republocrats are incapable of effective government that represents the people because they are both beholden to the same interests: their donors’ and their own. Kent Conrad was a helluva guy when he went to Congress—a populist with a policy—now he does the bidding of the insurance companies.

Each party has betrayed the ideals of its founders: Republicans are supposed to be fiscally conservative, yet implemented the biggest unfunded mandate in history with the Medicare prescription program—expiration of the pay-as-you-go rule in effect during Bush I and Clinton was the only reason this was possible—and a war of choice the true cost of which was hidden from the Pentagon and Omnibus spending bills.

This is a story that’s been told before, but it bears repeating: Pharmaceutical companies flooded Capitol Hill with lobbyists and donations in the weeks and months before the vote. They basically wrote the bill themselves to make sure that cheaper drugs couldn’t be imported from Canada, and that the government was prohibited from negotiating purchases as a group, just like every insurance company does with its prescription drugs and every medical service it pays for, which would have meant tremendous bargaining power to lower prices. Either would have reduced the drug companies’ profits to the benefit of taxpayers, but the alleged representatives of the people couldn’t be bothered.

(Footnote: The vote took place at 3 am. “I think a lot of the shenanigans that were going on that night, they didn’t want on national television in primetime,” Rep. Dan Burton told 60 Minutes. The Congressman who played a major role in shepherding the bill through the House became the head of the pharmaceutical lobby just fourteen months later.)

But guess who did the same deal with PhrRMA in April? President Obama. So much for standing up for the common people against powerful interests—like the Democratic Party of FDR and LBJ. And so much for “change we can believe in.”

In barely more than a year, the president has gone, in the eyes of the people, from being the outsider candidate they hoped would alter what they’re dissatisfied with to the insider they’re dissatisfied with. But just as with Conrad and others, his first year has shown that you can’t play ball in Washington without sucking up to the checkwriters that are the cause of the problem.

Scott Brown is making his victory speech as I write this. He’s trumpeting the power of “the independent majority” that elected him (51% of voters in Mass. are “unenrolled,” i.e. affiliated with no party). “This is the people’s seat,” he’s saying. How long before he fails the people who pulled the levers for him? My guess is right around the time he needs Republican Party money to get re-elected.

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Does George Will have amnesia? Or is he merely dishonest?

Because there’s no other possible explanation for today’s column.

Will makes the preposterous claim that liberalism is the cause of the state’s fiscal woes.

What liberalism is he talking about? The liberalism that locks up nonviolent drug offenders at a cost of $40,000 per prisoner per year? The state spends at least $7 billion on prison health care alone, to a large degree because of asinine conservative ideas like “3 strikes you’re out,” which has jailed people for life for stealing a slice of pizza.

The kind of liberalism that quadruples the cost of a college education at public universities over 20 years? (Under $2600 a year [inflation-adjusted] when I started at Berkeley, in 1989; more than $10,000 next year. When Jerry Brown went there it was $0.) Will compares UC tuition to Stanford tuition, as if to say what a bargain it is. Stanford is not a public university. Apples to apples, please, Mr. Will.

The liberalism that imposed term limits on legislators, causing them to rely more on corporate and other lobbyists to draft legislation because they lack experience–the opposite of its intended effect (though entirely predictable)?
The liberalism that rejects challenges to state gerrymandering, which entrenches extremists on either side of the aisle, making fiscal compromise more difficult?
The cause of California’s fiscal woes can be traced to Prop 13, which in 1978 capped property taxes and required a two-thirds majority in the legislature to raise income tax. As a result, the state and its cities must rely more on regressive sales tax. Regressive taxation is policy favored by conservatives, not liberals (see: Steve Forbes and the “flat tax”) and Prop 13 was backed largely by conservatives.
Will decries the state’s liberal income tax code as a cause of people leaving the state. These two events have never been correlated, for one thing, and for another if property taxes weren’t so insanely low–I paid less than half in property taxes in CA what I did in NY, for a home that was double the valued of the NY property’s–the state wouldn’t need to tax the rich so much.

He also implies that taxation is somehow the cause of manufacturing jobs leaving the state, even though manufacturing jobs have been leaving every state for some time now. (Once people find another one, this is generally considered a good thing, because manufacturing jobs suck.)

Once again, we see conservative columnists needing to be dishonest to make their point. Which ought to be evidence enough of the paucity of their ideas, the vacuity of their ideals.

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What does Harry Reid have to apologize for?

It’s not entirely clear to me that Reid, in his remarks, was not adopting the speech of a person who might feel the way he described, rather than the way he himself feels. And if the latter, the only thing he might apologize for is the use of the antiquated term “Negro,” which some find offensive given its roots in the slave trade (among other reasons).

Implying that Obama’s response to Reid’s comment, as some have done by comparing them, should be consistent with his response to earlier comments by Trent Lott (Strom Thurmond was right to oppose civil rights, which are the cause of many of the problems we have today [to paraphrase]) and Don Imus’s (the Rutgers championship basketball team is composed of ugly prostitutes), is itself more offensive than Reid’s comment.

Reid was stating an unfortunate fact of the absurd degree to which race continues to define our society, and some people’s place in it. Lott was endorsing apartheid, which, even if he was joking, is repulsive (especially for a national leader). Imus was misogynistically debasing a group of accomplished individuals based on their appearance, using a significant, derogatory and racially-specific term to do so.

No contest.

Just found that Mark Kleiman said essentially the same thing before I did, not to my knowledge. I say this in the interest of disclosure, not self-aggrandizement.

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Drone aircraft, civilian casualties, and the law

A Reaper UAV being prepared for a test flight, Creech AFB, Nevada. Image by Getty Images via Daylife

The Wall Street Journal editorializes today about the use of UAVs in the war on terror. It makes the case that despite concerns, their use is legal under international law, and that drones minimize civilian casualties. Both of these points may be true, but in typical fashion the Journal eludes one of the key questions and contradicts itself on the other.

This is a topic I know a little about: In 2008 I edited a feature article for a national magazine on the team of Air Force personnel that operates the drones from trailers outside of Las Vegas (check back next week for the link), and last month I interviewed the UN Special Rapporteur on Extrajudicial Killings, Philip Alston, who has been the most outspoken official about the question of the legality of the US program.

As is too often the case, the Journal in its editorial is guilty of dishonesty by omission. It implies that the only issue of international law at hand is that the law

…allows states to kill their enemies in a conflict, and to operate in “neutral” countries if the hosts allow bombing on their territory. Pakistan and Yemen have both given their permission to the U.S., albeit quietly.

But that is not Alston’s beef, as he told me when I spoke to him in his office on December 7 and 10, and as he told Amy Goodman of “Democracy Now” in October pursuant to a report to the General Assembly he issued  (good luck finding it on the UN’s Kafka-esque website). Rather, it’s a matter of taking proper measures to prevent civilian casualties.

The Journal blithely claims that the drones are more accurate than alternatives, and superior at targeting combatants out of uniform. I’ve seen screen shots of what the drone operators see, and the level of detail that can be ascertained from 12,000 miles away is flabbergasting.

Yet, the Journal states,

Civilian casualties are hard to verify, since independent observers often can’t access the bombing sites.

Wait a minute: The drones can tell whether a targeted individual is the right guy or not before they shoot him, but they can’t go back afterward and see if there are any dead children lying around? This is ludicrous!

It’s also the main point Alston raises regarding the drones’ legality, but you wouldn’t know that from the Journal‘s editorial. According to international law, parties to armed conflict must take reasonable steps to prevent civilian casualties. Whether the US is doing so in this case, we have no idea. Alston:

We have no real information on this program…There’s no accountability for it. There’s no indication of the rules that they use…It’s possible to justify a particular killing, but the CIA has never tried…They have simply issued a general assurance…Well, if Israel or some other country that we’re scrutinizing says that, we say, “Sorry, guys, it’s not enough. We need to get the details.”

Alston continues:

I’m calling for the government to make clear the details of the program; the legal basis, under US law, on which they are relying; the rules that they have put in place which govern the CIA actions, assuming there are rules; and what sort of accountability mechanisms they have.

The drones are an incredible tool of war, a disruptive technology on the order of the iPod. They are no doubt effective, and they save American lives. All good. They may also save civilian lives. Also good. How hard can it be to verify this point? And wouldn’t it behoove the battle for hearts and minds to do so?

Does anyone know if there would be any intelligence risks at stake, or tactical disadvantages, to do another fly-over and check for collateral damage? I haven’t heard either, but I’d be interested to learn one way or the other.

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