Saturday, April 23, 2005

Filibuster remarks, again

Talk about filibuster seems to be dying down, but lest we forget I want to repeat my post of a couple of months ago.
(A speech teacher once gave the following format for a speech: Tell 'em what you're gonna say... tell 'em... tell 'em what you said. Maybe after three times hearing it the speaker can get something to stick in the memory of his listeners. That's the "power" part of "power point."
That's why I don't worry about repeating myself.)

Today's generation really doesn't know what is meant by the word "filibuster," mainly because no senator or congressman has demonstrated the tactic for a long time. All we have heard is saber rattling threatening a filibuster. I remember when the filibuster was a living reality. It was used by Southern politicians to fight against the Civil Rights Act of 1964.

At the time I was involved with the civil rights movement I thought that a filibuster was an unmitigated evil, a way that a minority of nasty people could stand in the way of progress by opposing the majority. As I grew older, I learned that securing a majority is not the same as selling the result. Anyone who believes otherwise need only to look at today's sharply divided opinions following the last presidential election.

A filibuster does not absolutely stop a bill. It can be overcome by a cloture vote, which is a super-majority. It used to be 67 votes in the Senate, but the rule was changed in 1975 to reduce the required number to 60. The required "super-majority" is shrinking as the years go by.

Why is a super majority important?

I believe that there are instances where the minority view is so strongly held, so resistant to change, that without that super majority the results will be so lacking in good will that "victory" will be somewhat hollow. I know from personal experience that even after cloture was invoked in 1964 resentment ran very deep in white circles. It is fair to say that the same resentment is alive and well today, although it is no longer popular to express it openly as in the past. A change of behavior was all that was achieved by law. A change of the law does not reach, and cannot reach, into hearts and belief systems. That is a change measured in generations, not sessions of the legislature.

A super-majority does not improve good will. If anything, a super-majority tends to make the losing side even more durable, less open to good will no matter how it is expressed. It is a clear political example of push coming to shove. The super majority says to the losers "Get over it." The much vaunted "will of the majority" is invoked, along with an unwillingness to examine, much less honor, any core objections at the heart of the opposition. What happens next has less to do with good will than behavior. In the case of validating a presidential appointment, the super majority manifests an uncompromising level of political will, insuring that the losing side will become less likely to continue obstructionist tactics. The losers are apt to become more cynical, if less active, instead. They lose, clearly, with only one reward -- the record will forever show the stand that they took, the principle for which they fought, and the constellation of opponents united in defeating that position.

To repeat...parliamentary victories do not insure a change of heart on the part of the losers. If anything, they cause the losers to become even more stubborn in their minority position. A near-win (simple majority instead of a super-majority) can fuel the fires of the losing side, insuring that conflict will last longer rather than resolving more quickly. The super-majority required to overcome a filibuster is like the coalition concept found in parliamentary systems. Coalitions, of course, are political solutions to NON-majorities whereby a constellation of opponents join hands for the purpose of creating enough votes to get something done...despite other disagreements.

In order to stop a filibuster it is necessary, at least for a moment, that people who disagree about other matters come to common ground, if only for that moment, to send a message to those staging the filibuster that they are fighting a losing battle for the political will of most - not just a majority - of the people.

In the matter of approving the president's nominee for ambassador to the United Nations, I would very much like to know that he is going there with a super-majority behind him. The UN is one of the most corrupt, inept and embarrassing assemblies in modern history. It is long overdue for reform. But all indications are that sending someone of John Bolton's temperament into a diplomatic forum is not very different from losing a bull in a china shop. As one of the minority, I would like to be on record that such a gesture is ill-advised.

Whatever he might do to improve the UN will have my approval.
In that event I will be more than happy to admit that I was dead wrong in my assessment.


It has been suggested that the filibuster is "unconstitutional."
Maybe it is, since that designation has proved to be a moving target throughout our history. Many years passed from the time the US Constitution was created and the passage of amendments to clarify specific issues clearly designated as "constitutional." Things like slavery, women's right to vote, income tax and so forth seem to have escaped notice when the document was written, and so had to be included later. Likewise for the prohibition of hard, excuse me, that one seems not to have worked out and had to be repealed.

Oh well, we have to wait to see if the filibuster, with its long and tarnished history may at last be discovered to be unconstitutional. No doubt some "activist" judge or other will play that card in time and the Supreme Court may deign to weigh in on the matter. But I wouldn't bet on it. The courts have bent over backward to avoid political issues, except in cases where the legislative branch has repeatedly shown pusillanimity supplying legal guidelines to follow.

Lawmakers lean toward getting reelected too much to risk taking clear positions on controversial issues. I know what that's like. As a restaurant manager I never took a position on smoking in the dining room, needing the revenue from smokers and non-smokers alike, refusing to alienate either side. Smoking in public is a case where a political remedy (as in the case of public accommodations, legally mandated by a civil rights bill) is needed to make the problem "go away." City and county governments are realizing this and doing the hard, if not popular thing by putting limits on public smoking, at least in their jurisdictions. In the case of invoking cloture, legislators are in the same pickle. Rather than risk losing votes from one constituency or another, they fare better casting blame on the judiciary than using a legislative remedy over which they have control. (We are still waiting for state legislatures to place restrictions on abortion as the language of the much-maligned Roe decision suggested. To date I think about twenty or so states have passed limiting legislation on this out of control social evil, but until EVERY state does so the practice will continue. But I digress...)

No, I don't expect to see much backbone on the part of the Senate. If and when a filibuster is staged, that august body will sit and wait until a national political will is mainfest. Then and only then will they take action one way or another.

In the meantime, those pressing for quick confirmations of presidential appointments will grab their megaphones and keyboards and mount a public relations campaign along the lines of any other political effort. I would not be surprised at efforts to use the courts -- recently excoriatied for activism and immorality by many of the same people -- to proclaim the filibuster "unconstitutional."

No comments: