The Filibuster Rules Must Be Changed

The Senate tactic known as the filibuster is designed to prolong debate on a bill in order to delay or to prevent voting on the bill. It came into the Senate Rules in 1806 and, importantly, is nowhere to be found in the Constitution or other founding documents. It is an administrative rule for the Senate alone. Rules can change. This one is steeped in over two hundred years of usage and custom and is ingrained in the heart of the Senate. In 1917, with Senate Rule 22, for the first time the Senate adopted a change allowing a filibuster to end if there was a two-thirds majority vote to override it, a term known as cloture. In 1975, the Senate voted to reduce the two-thirds majority (currently 67 votes) needed for cloture to a three-fifths majority (60 votes). The 60 vote threshold is significant because it also changed the requirement for that number from those Senators present and voting to an absolute number of votes required, making it possible to filibuster without ever entering the Senate chamber. In recent years, the filibuster was abolished for judicial and other nominees, most famously allowing Cabinet nominees, federal judges, and Supreme Court nominees to be confirmed with a simple majority. The filibuster now is only used for legislation, although there are other arcane Senate rules that allow for passage of some budget bills with a simple majority. Notably, under the Senate rules, a piece of legislation can pass with a simple majority, it is the move for cloture that requires a 60 vote threshold. This allows for Senators to say that they would have been “for” a particular bill, but that procedurally, they were “against” moving forward without debate. In other words, many times the rule can be used to provide a given Senator or group of Senators political cover by not forcing them to vote up or down on a particular bill. It just never comes to the floor, leaving the Senator to be able to claim almost anything about what he or she might have done.

The filibuster was rarely used in the long history of the Senate, until the latter part of the twentieth century. Now, especially in a fiercely divided political atmosphere, it is being used with regularity. One person can stop a bill from coming to a vote if his or her party refuses to supply sufficient votes for cloture. This is extremely frustrating to the majority party, and is a major reason that little significant legislation gets passed.

There is no penalty for a single Senator to threaten a filibuster. They do not have to go to the floor anymore to actually hold the floor and talk — think Jimmy Stewart in the 1939 film “Mr. Smith Goes To Washington.” The last time a similar scene occurred was in September 2013 when Senator Ted Cruz (TX) held the floor for 21 hours 18 minutes in an attempt to shut down the government by opposing an appropriations bill. In August 1957 Senator Strom Thurmond (SC) talked for 24 hours and 18 minutes to filibuster the Civil Rights Act of 1957, the longest single-person filibuster in U.S. history. The bill passed. (Senator Thurmond was part of a group of Senators that used the filibuster to hold up The Civil Rights Act of 1964 for 60 days.) Originally, no other legislation or business could be conducted in the Senate during a filibuster. In 1970, as a reaction to Senator Thurmond’s and other southern Senators’ filibusters of civil rights legislation, the Senate adopted the “two track rule.” This allows for other bills and business to come to the floor while the filibuster is on. This allowed the Senate to become more efficient, but opened the door to ever increasing threats of a filibuster because there were no real consequences to saying that a particular Senator will filibuster. They can sit in their office and play solitaire if they so desire, while their threat holds up a bill that may not reach cloture.

Why the history lesson? I am no Parliamentarian and I am not trying to make anyone else one either, but it is helpful to try and understand where we are in our Republic today.

The filibuster is considered to be the one rule that makes the Senate what it is (or was) — the world’s greatest deliberative body. The idea is that the majority cannot cram through any whim of the moment piece of legislation. The minority party can block it. In theory, this is supposed to lead to negotiation and compromise, steering a steady course for the nation as the Senate provides a firm hand on the tiller to keep the wind and currents driving the People’s House from putting our country on the rocks. Unfortunately, in today’s environment, compromise and negotiation are dirty words to the extreme fringes of the political parties. It is easier to go on Fox News or other cable networks and make a name for oneself among the “base” as “fighting” to save Mr. Potato Head or whatever, than it is to actually do their jobs.

To be honest, why would President Biden or any Democrat in Congress want to compromise or negotiate with the other side when 147 of them in the House and Senate, nearly two-thirds, voted to overturn a free and fair election? And after an insurrection at that. Most of those 147 still will not acknowledge that President Biden won. The president held out an olive branch, but he rightly moved ahead with the COVID Relief Bill without a single Republican vote. Not one Republican in the House or Senate, despite the fact that every poll shows that 75% of the public — Democrats, Republicans and Independents — support it. Try for bipartisanship, but move on with the people’s business if all the opposition wants to do is obstruct.

I used to agree with the need for the filibuster. It was what made the Senate the Senate and not the whimsical House of Representatives. Now, I have changed my mind. The filibuster as currently interpreted must be changed. If no one can agree on how to change it, get rid of it. The counter-argument to keep it basically amounts to “pay backs are hell” — just wait until Republicans regain control of the Senate and watch them undo everything on a straight party line vote. After reading about the filibuster and listening to various pros and cons, I still think it should go. First, I have no doubt that if Senator Mitch McConnell (KY) regains his place as Majority Leader he will get rid of it in some form. Second, elections have consequences. Whichever party is in control will pass legislation to fulfill their agenda. The voters sent them there to do that. Right now the Senate accomplishes very little. If the controlling party passes legislation the voters do not like, they will vote them out of office. As it stands now, Senators have very little accountability. Modifying the filibuster or doing away with it will bring the spotlight on to those that would sabotage legislation and force them to defend their position.

Here is the point of this discussion. There are 253 bills proposed in 43 states, almost all by Republicans, to change voting laws. Most are meant to inhibit voters from going to the polls and are geared towards disenfranchising minorities. For example, in Georgia the legislature, among other things, is prohibiting Sunday voting. This is directly aimed at eliminating the successful efforts to mobilize black voters through “Souls to the Polls.” This is where many working class African-Americans go from Sunday church services to their polling places as a group. Many of them are people who may not be able to get off of work to vote on Election Day. Other provisions limit early voting, severely restricts voting by mail, and for some reason makes it illegal to provide food or water to people waiting in line to vote. There are other draconian measures in the legislation that is clearly aimed at decreasing turnout by making it as difficult as possible for people to vote, mostly aimed directly at minority populations in large cities. Jim Crow is alive and well.

The House passed H.R. 1 the “For The People Act” without a single Republican vote. The bill provides a uniform baseline within the U.S. for voting. It includes provisions for voter registration, early voting, voting by mail (it is worth noting that Oregon holds its elections entirely by mail and has done so for years without any problems), military and other overseas voters, election integrity, nonpartisan commissions for drawing up House districts, election security, the use of paper ballots as back up to electronic voting and a host of other common sense requirements.

Traditionally, the rules and methods for voting are left up to the states. H.R. 1 does not preclude states from adding additional features, as long as it does not restrict the baseline requirements proposed in the bill. In essence, it would make it easier for all Americans to vote. Voting can be done with full integrity with large numbers of participants, and we demonstrated that in the 2020 election. The ex-president’s own Administration called it the most free and fair election in our history with an historic turnout.

But the Big Lie continues to underpin Republican arguments that the voting process must be changed. As recently as this past Tuesday, the ex-president went on his favorite cable news channel to continue to complain that the election was rigged and that he actually won by “millions” of votes. Republican members of the House and Senate continue to do the same. Their entire premise for changing states’ voting laws is a lie.

The Senate version of H.R. 1 will not pass if the Republicans filibuster it, which they plan to do. This is where the rubber meets the road and could create the conditions to end the filibuster. Many people, me included, think that restricting the vote and disenfranchising Americans must be stopped and is alone sufficient cause to end the filibuster in order to save our Republic.

Try modifying the filibuster first. Perhaps going back to the time that a Senator or group of Senators actually have to hold the floor, talk, and be present for the entire filibuster. Perhaps by invoking a rule that three-fifths of the Senators present in the chamber can vote for cloture. I am sure that a good Parliamentarian can come up with a number of ways to preserve the filibuster but still make Senators put some sweat equity into the process and make them defend their position in public.

I would love for Republican Senators to have to publicly defend their disenfranchisement of African-Americans and other minorities. I would be truly interested in having them explain and defend restrictions on early voting, vote by mail, polls closed on Sunday and other restrictive measures. It would be fascinating to learn why a Senator thinks that it should be illegal to provide food and water to people waiting in line to vote.

Change the filibuster rule to make Senators accountable to the voters. Do not let them continue to hide behind arcane rules that hide their true values and intentions. If it can’t be changed, then get rid of it.

A Humble Anniversary

Thursday was the “official” one year anniversary of the COVID-19 pandemic. On 11 March 2020 the World Health Organization (WHO) declared it one. At the time of the declaration there were 118,000 known cases world-wide and 4,291 deaths. On that day, the NBA suspended its season, the NCAA said that there would be no fans for March Madness (the Division I championship — the next day the tournament was cancelled), and Tom Hanks and his wife Rita Wilson announced that they tested positive for the Coronavirus. On that day the now ex-president addressed the nation on developments, tried to reassure the nation (“the risk is very, very low”), and banned travel from the European Union (EU) (except the United Kingdom) for 30 days, causing mass confusion due to a lack of warning or coordination with our European allies. Unfortunately, the virus was already here and spreading quickly.

On that day there were just over 1,000 known cases in the U.S. and 31 dead, mostly in Washington state. Dr. Anthony Fauci testified to Congress that day and warned that the outbreak was spreading and that “it’s going to get worse.” We were also in the midst of a stock market collapse. On 11 March alone the Dow Jones Industrial Average (DJIA) dropped over 1,200 points, continuing a downward trend and closing about 20% lower than its peak the month before. The nation was in the midst of a crisis that few had experienced in our lifetimes. The economy tanked almost overnight following a spate of shutdowns and lock downs and no one was sure as to what precautions each of us should take to prevent the spread of the disease.

One year later, there are roughly 118 million known cases around the world and 2.6 million deaths. Unfortunately, the U.S. is number one in total known cases and deaths — as of today, we have experienced approximately 29,287,876 cases and 530,977 deaths. We lead the world in both categories. And yet, many of our fellow citizens do not take the pandemic seriously, or worse yet, some still think that it is a hoax. Like so many issues over the last four years, we Americans have managed to politicize a deadly disease that took far too many of us over the course of one year.

Just think what the reaction would be a year ago if any scientist or doctor or other health expert predicted that one year after declaring the pandemic, the U.S. would have over 530,000 dead Americans. Outrage! Scare tactics! Using the numbers to gain a political advantage! No one would have believed it. At the time, our worst case predictions were in the 100,000 to 200,000 range. Worst case. We would be in the lower end of the scale if precautions were taken, in the upper end if they were not. It was hard to imagine. Some Americans argue that “they would have died anyway” and that the figures are inflated. Well, in one respect, the critics are correct — every living thing dies eventually. But those 530,977 died before their time and many of them died alone without comfort or love from families or friends. But for arguments sake, let’s say that the numbers are twice as high as “the real” pandemic death toll. That is still over 265,000 dead Americans. How is that really any better? It still means that we did twice as bad as the predictions from one year ago. It also ignores the long-term impact on the health of people that were sick, but survived. Some have been hospitalized for months. We just do not know what the second order impact of the disease might be over time.

Here is what bothers me the most. These days people talk about “over 500,000 deaths” to date. That means that 30,977 dead Americans are a rounding error. We should be appalled if that was the total number of human beings lost to the disease. Now it’s just a rounding error. That is where we are today. Perhaps the full measure of the huge number is difficult to comprehend. Think of it in individual terms. All of those families, friends and acquaintances that were impacted by that number of dead Americans. It is staggering.

No one is responsible for the pandemic coming to America. Plenty, however, are responsible for lying to us, misleading us, politicizing the disease, actively undermining common sense measures to stop the spread, and generally providing poor leadership in refusing to take the easiest steps to slow down the spread significantly. This was the greatest health disaster in our country in at least 100 years. We should have been better, smarter, united and focused in combatting this scourge. Didn’t happen. There were no “miracles.” No bleach injected into bodies. Hydroxychloroquine did not make it “just go away.”

Instead, people lost their lives and livelihoods. Went hungry. Fell behind in their educations. Created massive food lines that differ only from those of the Great Depression by the fact that you can drive through instead of line up on the sidewalk. Many of us have seemingly lost a year of our lives without the benefit of friends or family to carry out even the most basic of our social rituals. And it didn’t have to be this way.

Thankfully, if we can stay the course and stay smart in taking precautions, we are nearly through the worst of it. Only a few more months to go as more and more people are able to receive the vaccinations that appear to be very effective. Compare the presidential speeches of 11 March 2020 and 11 March 2021. Leadership is back. More importantly, technically and scientifically competent people are back in charge within the Administration, working day and night to fight to get us out of this mess created by a silent killer.

Stay safe. We are almost there. No one wants to be the last war casualty before the Armistice goes into force.

It was a long tough year. A lot has changed, a lot has not. I trust that a year from now we will be able to memorialize those that we lost, without having lost a lot more.

Gaslighting America

Gaslighting is a form of psychological manipulation in which a person or group sows seeds of doubt in a targeted individual or group, making them question their own memory, perception or judgement. Those conducting the gaslighting use denial, misdirection, contradiction and misinformation to delegitimize other’s beliefs. It is recognized in psychological analysis, especially in the definition of abusers. The term comes from a 1938 stage play called Gas Light which was turned into a 1940 movie and, most famously, a 1944 movie called Gaslight starring Ingrid Bergman and Charles Boyer where a man tries to convince his wife that she is going insane so that he can have her committed and he can retain her murdered aunt’s wealth. The term relates to his turning down their home’s gas lights while insisting that they are fully bright, among other things to make her feel detached from reality.

The United States is being gaslighted by most of the Republican Party, especially those in Congress. They are trying to gaslight us about the Big Lie of the 2020 election, about the attempted coup on 6 January 2021, and are using these lies to propel Republican controlled state legislatures into passing laws limiting voting opportunities and engaging in voter suppression.

For one example, listen to Republican Senator Ron Johnson (WI) question whether it was an “armed” insurrection which he did on a local radio station in Wisconsin. “That didn’t seem like an armed insurrection to me. When you hear the word ‘armed’ don’t you think of firearms? How many firearms were confiscated? How many shots were fired?” (Numerous firearms and explosives were known to law enforcement to have been at the capitol in the hands of the rioters, more were confiscated later, and detailed plans have been uncovered for the use of firearms by those storming the capitol.) Or perhaps this bit of misdirection by him on 7 February in a Fox News interview? “I have always believed the Russian hoax was a diversionary operation from the corruption occurring certainly within the FBI and potentially some of our intelligence agencies. You kind of have to ask the question, what is this impeachment all about? We know that 45 Republican senators believe its unconstitutional. Is this another diversionary operation? Is this meant to deflect away from potentially what the Speaker knew and when she knew it? I don’t know. But I’m suspicious.” (Senator Johnson is joined by the lead seditionists Senators Josh Hawley (MO) and Ted Cruz (TX) in trying to blame Speaker of the House Nancy Pelosi for the attempted coup at the capitol.)

Since that was not enough, Senator Johnson went further during the Senate hearings on 23 February investigating the attack on the capitol. He claimed that the “great majority” of the rioters had a “jovial, friendly, earnest demeanor.” In his portrayal, the rioters were festive and the demonstration was “jovial.” The rightful focus of an investigation should be on those that perpetrated the violence. You know, the “plainclothes militants, agent provocateurs, fake Trump protesters, and disciplined uniformed column of attackers.” He later added, “Basically it was like a picnic here that day until they [meaning antifa] got involved.”

For the record, on Tuesday 2 March FBI Director Christopher Wray clearly stated in his testimony that the insurrectionists did not have any (any!) members that were “antifa,” or “anarchist violent extremists,” or any other left-wing participation. He did say that the primary instigators of the attack were white supremacists or members of right wing militias. Of the roughly 270 rioters arrested so far, 33 belonged to right wing militia groups, 82 were friends and associates of organized right wing groups and the rest did not belong to any organized group. Director Wray testified that this latter group was his biggest concern as they do not fit into any “chain-of-command” type organizations and are likely to be “lone wolfs” ready to conduct violent acts based on their having been influenced and radicalized by right wing extremism on the internet and through social media. The Director said that combatting domestic terrorism is currently the FBI’s number one priority and that they are investigating about 2,000 cases right now.

There is no “what aboutism” to this. There is no both sides. Those that try and and compare the Black Lives Matter (BLM) demonstrations to the attack on the Capitol are trying to change the subject. There is no comparison. The attack by right wing extremists on the Capitol was intended to overthrow the government and to undermine a free and fair election in order to hand the presidency to a wannabe autocrat. I will state unequivocally that any criminal behavior taking place during any protest, BLM or otherwise, should be prosecuted to the fullest extent of the law. And it is. Actions by any BLM groups or others associated with the otherwise peaceful protests does not in any way justify what happened at the Capitol in January. And yet, Republican Senators are trying to say that it does.

At this week’s hearings Senator Cruz asserted that “in the past year we have seen massive rioting and violence as extremists, many of them leftists extremists, took to the streets across the country.” After clearly speaking about the BLM demonstrations, without using the name, he asked Director Wray what the FBI is doing “to counter this ongoing pattern of domestic terrorism.” Of course! According to Senator Cruz the real terrorists are not those attempting to over throw the government and kill the Vice President and Speaker of the House. It is those terrible black people and those that support them.

In spite of all the evidence, politicians, media personalities, activists, and others on the right are trying to rewrite history to turn the violent insurrection at the Capitol into “no big deal.” As chronicled in the Washington Post, it is a concerted effort to blame leftists and to absolve the ex-president (a.k.a the former guy) of any blame. In a tried and true tactic, many of them are actually blaming the Speaker for the attack. Representative Ken Buck (CO) said that Democrats are trying to create the impression that “there’s a bunch of people running around in the woods with Army fatigues on the weekends, and they’re going to take over this country, and that’s just nonsense.” Others criticize the fences and National Guard troops still at the Capitol as some kind of trick by Democrats to create the illusion of danger. They think it is part of a political effort to exaggerate the threat from right wing extremists dubbing the Capitol “Fort Pelosi.” Some even contend that the circumstances surrounding the death of Capitol Police Officer Brian Sicknick are fishy and that it is being used by the Democrats to further their anti-Republican agenda.

Senator Cruz, of course, is one of the eight Republican Senators that joined 139 Republican Representatives to vote against certifying the results of the Electoral College, even after the Capitol had been sacked by supporters of the now ex-president. (You can find their names here.) This is the biggest gaslight of all. Most of those Republicans still refuse to recognize that Joseph R. Biden Jr. is the duly elected 46th President of the United States. Those 147 Republicans, and the Gaslighter-in-Chief continue to perpetuate the Big Lie that the 2020 election was rigged, stolen, or otherwise fixed to put Mr. Biden in the White House. This has real consequences. Mr. Cruz, Mr. Hawley, and everyone else that keeps pushing this devastating lie is actively and willfully undermining our democracy. They are using a circular argument. They have actively pushed this lie, directly leading to the insurrection in January. They then turn around, after having convinced their constituents that their votes did not count, even in the face of all factual evidence to the contrary, and say, “gosh” my constituents want to know what is going on, therefore I must act to fix the problem.

Those fixes involve voter suppression and disenfranchisement for millions of Americans. Republicans cannot win at the polls based on their ideas and policies, so they are working as hard as they can in state legislatures to pass laws that will keep many people from voting — most of whom usually vote for Democrats. Want an example? In Arizona they are considering a law that designates the state legislature as the final authority on deciding who the state’s Electoral College electors will be. No matter the vote count. No matter if the Governor and Secretary of State certify the results. No matter if the loser fails to win a single case in the courts. A simple majority of the legislature can substitute their own slate of electors at any time up to the day of the inauguration of the president. Indeed, why should we even let people vote?

Gaslighting has real consequences.

There is a distinct moral void taking hold in our country. Don’t like the consequences? Pretend that nothing happened. Don’t like the facts? Create your own alternative facts. Can’t win elections? Change the rules so that only your folks can vote. There is no shame. There is no taking responsibility for one’s own actions. Do you worship a man rather than fulfill your oath to the Constitution? No problem. Just vilify everyone that doesn’t worship at the feet of the golden don. (If you missed it, here is a picture of the Republican Party version of the Biblical golden calf at CPAC in Florida.)

The danger to our Republic remains. As long as the majority of Republicans at all levels of government keep the Big Lie alive, we are under threat. Call out the gaslighters when you seem them. Keep the facts out there. Advertise what the FBI Director testified to concerning the threat. Remind people that the Department of Homeland Security (DHS) puts out warnings about domestic terrorism from right wing white extremists. We are in a cold Civil War. We need to work to keep it from going hot.