Three cheers for Rand Paul, who at least knows that the right way to conduct a filibuster is to physically stand on the Senate floor and halt all business by talking interminably. Paul logged 13 hours yesterday, to protest drones. But his performance, reminiscent of Jimmy Stewart in Mr. Smith Goes to Washington, should not obscure the fact that the Senate remains dysfunctionally paralyzed, on virtually a daily basis, by fake Republican filibusters.
Indeed, back in January, Senate Democratic leaders had a golden opportunity to reform the rules and put an end to GOP-engineered paralysis – but, naturally, they wimped out. And sure enough, Republicans have resumed their old tricks. Frustrated reformers can only say, “We told you so.”
Fake filibusters have become routine; they occur when Republicans file a slip of paper that only threatens a real filibuster of a bill or a presidential nominee. Unless 60 senators opt to end the threat, the bill or nominee remains in limbo, often forever. During the Obama era, there have been more than 250 fake filibusters; that’s more than one a week, easily a new record. And this minority exercise of power is perversely impressive – given the fact that the fllibuster tactic, real or fake, isn’t mentioned anywhere in the U.S. Constitution; indeed, James Madison, father of the Constitution, warned in the Federalist Papers that if legislative power was transferred to the minority, “the fundamental principle of free government would be reversed.”
Democratic leaders had a chance to end this nonsense, at the dawn of the year; under Senate procedure, they could’ve reformed the filibuster rules by majority vote. They could’ve abolished the paper-threat filibuster and insisted on the real thing, requiring that obstructionist Republicans stay on the Senate floor and talk. In short, they could’ve curbed the routine obstruction of bills and nominees. Instead, Harry Reid caved; the reforms he agreed to are so weak, there’s no point in detailing them. The bottom line is that it still takes 60 votes to break a routine Republican logjam. As Reid said in January, “I’m not personally, at this stage, ready to get rid of the 60-vote threshold.”
The result? Paralysis as usual. Senate Republicans staged the first-ever filibuster (fake variety) of a nominated Defense Secretary, blocking an up-or-down vote on Chuck Hagel for two weeks just because they could. They vowed in a letter to fake-filibuster any nominee to run the new Consumer Finance Protection Bureau. The fake-filibustered a bill to avoid the sequester. And yesterday – in a maneuver that was unfairly overshadowed by Rand Paul’s talkathon – they fake-fiibustered Caitilin Halligan, a highly qualified federal judicial nominee. For filibuster reformers, the Halligan saga is Exhibit A.
Currently the general counsel to the Manhattan district attorney, and formerly the Solicitor General for the state of New York, Halligan has been endorsed for a vacant federal appeals court seat by the National District Attorneys Association, the New York Sheriffs Association, and two ex-assistant U.S. Solicitor Generals who served under Ronald Reagan and George W. Bush. She has been judged highly qualified by the American Bar Association. Obama originally tapped her for the vacancy in 2011, but she was blocked by the minority GOPers. Obama tried again yesterday, but again she was blocked by the minority GOPers. (She would’ve been approved by majority vote, but, under the rules of paralysis as usual, she needed 60 to end the obstruction.)
So what’s the GOP’s problem with Halligan? It’s simple: the First Republican Commandment is, “Thou Shalt Not Offend The Gun-Fetish Lobby.”
Back when Halligan was New York’s Solicitor General, she represented the state in a lawsuit against gun manufacturers. The state decided to file an amicus brief, and it was her job to write it. The NRA got mad at her. The NRA routinely pulls Senate Republicans’ strings in the manner of a puppeteer. So much for Caitlin Halligan.
There are currently 83 vacancies on the federal bench – triple the number of vacancies during George W. Bush’s second term. Nixing Obama’s nominees, via fake-filibuster, is a top Republican priority. And obeisance to the NRA aside, they have a partisan reason for obstructing Halligan. She’d sit on the U.S. Court of Appeals for the District of Columbia, arguably the most influential appeals court, and her presence would tilt the balance of power away from the Republican appointees. (Naturally, none of this has anything to do with her intellectual and legal qualifications.)
Senate Democratic leaders are complaining anew about the GOP’s predictable shenanigans (Harry Reid this morning: “A small minority obstructs from behind closed doors, without ever coming to the Senate floor”), but they have only themselves to blame. They caved on filibuster reform for the worst of all reasons – craven self-interest. Mindful of a future when they would be in the minority, they wanted to preserve the option of pulling the same stunts. But the only way to stop the systemic paralysis is to rise above partisanship and effectuate the cure.
Back in January, when Reid punted on real reform, he said, “The only way we’ll get rid of the filibuster is if continues to be abused.”
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