Senate filibuster is dying; time now for majority rule

Last week, an American political institution, aged 100, was placed on its deathbed. Its expected passing was mostly overlooked and unlamented.

It was “filibuster,” the evil twin of the less well-known “cloture,” who survives. Cloture is a vote to end debate and allow a final vote on a bill in the U.S. Senate. It was born in 1917 to allow a vote on a World War I issue.

With cloture, filibuster immediately arrived to prevent final votes. At first, it required endless debate. Eventually, the filibuster would allow debate to be ended only by a supermajority of 60 senators, not the Constitution’s simple majority of 51 senators. Only 41 senators could kill a bill.

Cloture has become a political battlefield. A minority of senators can control the Senate with just enough votes to kill a bill. It’s difficult to get the 60-vote supermajority.

In recent years, the Senate has been reverting to the simple majority. The supermajority is no longer used for major laws and for approving judges, even for the Supreme Court, or top executive branch officials.

To pass the Affordable Care Act, the Democrats developed a way to avoid the filibuster by linking their proposal to a prior bill on taxes and the budget. This year, the Republicans tried to use the same method to repeal the ACA.

In effect, both parties agree the filibuster is a bad idea. At least they do when they are in the majority. When in the Senate minority, their view flips.

With the GOP controlling both Congress and the presidency, they want to prevent the Senate Democratic minority from blocking their major legislation. President Trump encouraged the end of the filibuster.

Last week was the clincher. Senate Republicans voted for what they knew was an impossible budget, just to create a future link for tax legislation, thus avoiding a filibuster. House Republicans had adopted a different budget bill, but this week accepted the Senate version temporarily, to eliminate the chance of a filibuster of the tax bill.

With the simple majority now applying to so much of Senate action, the deathwatch for the filibuster began last week. Any presidential nomination and any major bill that can be made to have something to do with the budget – almost anything works – cannot be filibustered. It will fade, while remaining on political life support, in case of emergency need.

At first look, the end of the filibuster seems to be in line with majority rule, one of the basic elements of democracy. That’s correct, as far as it goes, but it doesn’t go far enough.

Even without the 60 votes required for passing a bill or approving a nominee, the Senate will still often be controlled by a minority. The 52 GOP senators in the current majority represent less than half of the American population.

It is at least possible that a Senate majority of 51 votes could come from senators representing less than 18 per cent of the total population. That’s true minority rule, which will survive the end of the filibuster.

Perhaps those 51 senators will never unite on a vote. But the likelihood is that, even now, laws are being adopted by senators representing much less than a majority of Americans. The filibuster only made it worse, because a blocking minority could represent a tiny portion of citizens.

The bad news may be that the filibuster, a vote on allowing a final vote on the bill itself, does not violate the Constitution, which authorizes the Senate to make its own rules of procedure. The good news is that a new voting procedure could be adopted in exactly the same way under the Senate rules.

Assume the Senate sticks to the simple majority rule described in the Constitution with no special ability for a minority of senators to block the passage of legislation. How can the U.S. prevent the underlying minority rule?

The Senate could adopt a so-called “qualified” majority rule. Passing a bill or approving a nominee would require the support of not only a majority of senators, as is the case today, but also that they must represent a majority of the population. The result would be a decision made by a true majority.

Each state would retain its two senators with equal voting power. But the need for an underlying majority of the people almost certainly would force more bipartisan cooperation. Today, for example, the only path to a qualified majority would require support from both Republicans and Democrats.

The filibuster fades. It’s time for true majority rule.

GOP faces possible "blowout," Dems could gain

When Susan Collins was thinking about leaving the U.S. Senate and running for governor next year, she was warned that she would face right-wingers in a bruising Republican primary. She could win a general election easily, but winning the nomination would be tough.

Whether that was a factor in her decision to stick with the Senate, we may never know. She would have had to spend months focused on the primary battle, time she could better use in pushing reasonable solutions to national issues in Washington.

But the question raised by the potential challenge to Collins is being asked all over the country. Will Republican office holders, no matter how conservative, fall to “populist” purity advocates?

The populists are steadfastly anti-immigrant, pro-tax cuts and seek repeal of the Affordable Care Act and much government regulation. Their flag bearer is President Trump, though their real leader may be Steve Bannon, an unelected ideologue backed by the billionaire Mercer family.

Trump’s popularity, whatever it may be, depends on trying to keep his campaign promises. He knows that is more important than any policy. He even asked the Mexican president to hint that Mexico would pay for the border wall, to allow him to appear to keep his promise.

Bannon is riding high because a man, twice removed from the Alabama Supreme Court for what amounted to constitutional violations, defeated an “establishment” conservative Republican for the GOP Senate nomination. Bannon takes the credit for that win and expects more such victories.

Bannon argues that the litmus test must be whether a Republican supports Trump. But Trump’s entire political purpose is about winning and getting the credit. He is willing to exploit populist support, so Bannon can use the president’s personal ambition for his own purposes.

The critical test has been whether the Republicans, in control of the federal government, can kill the ACA. If not, they must have tax reform, really a massive tax cut, by the end of the year. Failing that, Bannon would launch a full-scale attack on Republicans who had failed to support Trump and pass a tax reform bill.

Sen. Ted Cruz, the Texas GOP populist, believes that failure to enact tax cuts and ACA repeal could bring an historic “blowout” for his party next November. The GOP risk losing control of Congress if it does not keep its promises, he says.

But one forgotten Republican promise would be cutting the federal deficit, sacrificed for the tax cut. Major Republican backers are ready to pour money into the elections. For them, it is not a matter of populism, just about massive tax cuts for themselves. Whatever their intent, they will help the populists try to seize power.

The result of their efforts and Bannon’s could be a deep split among Republicans. The kind of venom directed at Senate Majority Leader Mitch McConnell by the populists is a possible indicator of events to come.

Or maybe Bannon is wrong about what people want. Having seen what the populists would do if they gain power, voters might return to supporting traditional GOP conservatives. Is populism merely a passing fad?

The Democrats are counting on one of the two outcomes being correct – the GOP splits apart or voters support the ACA, oppose tax cuts for the wealthy and reject populism. Either way, they can return to power.

There are problems with this Democratic dream. The internal divide between their establishment and the Sanders liberals could prevent them from unifying. Or, populism could be more than a fad and turn out to have the support of enough voters to win elections and govern.

Look at Europe. In country after country this year, populists or their equivalent have been winning more seats in national parliaments. Just last Sunday, they moved toward tacking control in Austria.

The leader of the successful Brexit campaign, based on opposition to immigration, showed up in Alabama to support Bannon’s candidate. Opposing immigration in the U.S. or Europe appears to be a political plus.

It is easy to believe polls that show Trump’s support declining or increased backing for the ACA. But they are only polls, not elections. Political dynamics are changing. Campaigns matter and voters may be moved by their momentum.

For the Democrats, the test is to offer innovative policies, find strong and younger leaders to promote them and to be unified, not splintered.

For the Republicans, the test is for moderates and conservatives is not to run scared, but to have the courage of their beliefs and raise the money to run decent campaigns.

Uninsured pay the price for ACA reform failure

On Election Day, Maine holds a popular vote on whether to expand Medicaid. No other state has done that.

The expansion would cover an estimated 70,000 people who don’t have health insurance. The decision embodies two key elements of most government actions: there’s no free lunch and nothing is decided once and for all.

After the Affordable Care Act was passed, the Supreme Court ruled that the federal government could not force states to cover more people under Medicaid, even when the feds paid about 90 percent of the cost. The ACA would have withdrawn existing federal payments if states did not accept expansion.

That decision left it up to the states to decide on voluntarily accepting expansion. Though 31 states plus D.C accepted, 19 did not. Maine resisted expanding its Medicaid, called MaineCare, the only northeastern state to reject increased coverage.

The Maine Legislature voted six times to accept the expansion, but Gov. LePage vetoed the bill each time. The issue comes to the voters because of a citizen initiative, which could not be vetoed.

LePage not only sees expansion as “welfare,” but dislikes its budget impact. It would cost the state less than $55 million, and each state dollar would bring $9.63 in federal dollars. Under the non-controversial highway referendum, Question 3, each state dollar would bring $1.10 from the feds.

Without the expansion, people who would have been eligible must continue getting haphazard medical care by relying on emergency rooms. The cost of their care is rolled into hospital costs and recovered in higher charges. Insurance premiums rise to handle the increases.

All the money comes out of people’s pockets, but we have little idea how much of the state spending would be offset by lower hospital costs and insurance premiums. LePage looks at the state budget not the individual’s wallet.

But increasing the number of people with health insurance coverage inevitably costs more. That’s why the ACA raised taxes on the wealthy. Still, there’s no way to be sure just what the net cost is.

So the vote comes down to whether Mainers want to risk a higher net cost to help more of their neighbors get better medical care. That is a classic political decision, involved in every budget action in Washington or state capitals.

Does the community, through its government, want to pay more to do more? If keeping the budget down is the highest priority, as it is for LePage, then his answer is “no.” Now it’s up to voters to give their answer.

This kind of decision must be made over and over on everything done by any government, from military spending to medical care. Only rarely do the voters find themselves deciding the answer.

LePage has another concern. Once Medicaid is expanded, how sure can we be that the federal government will keep up its end of the bargain? Perhaps years down the road, it will decide to change the funding formula, leaving states to pick up more Medicaid costs.

To avoid that risk, voters would have to turn down Medicaid expansion. This a reasonable issue to consider.

It’s like current proposals for tax “reform,” with cuts proposed that would reach out at least 10 years. No Congress binds another on most matters, so tax cuts could well be revoked sooner than promised.

In a democracy, people get to change their minds, especially in changed circumstances. If worry about possible change were allowed to control, not much would happen.

Still, it is worth worrying about programs like Social Security, Medicare and Medicaid that weigh heavily in the budget, but whose costs are driven by participant eligibility not budget priorities.

The answer may not be to deny people help they need because of such worries, but to address the underlying problem directly and comprehensively. Touching these programs is considered the fatal “third rail” of politics. Most likely, the only solution will come from a nonpartisan effort.

When benefit payments are guaranteed, providers and insurers may be tempted to use the system to boost their revenues. What decisions need to be made to limit the growth in costs?

Better ways of determining eligibility and improved protection against cheating is essential. But also essential would be some method of regulating costs of quasi-monopoly health care. Now that repealing the ACA has failed, it’s time for reform.

Maybe that’s what critics will now accept. But much-needed health insurance action should not use the ill, lacking insurance and access to affordable medical care, as hostages to force reform.

Free speech under attack from right, left

President Trump and some liberal college students have something important in common.

They don’t like the statements made by others, whether professional football players or conservative writers, and they demand an end to such statements.

The reason that Trump and the students oppose free speech, even to the point of preventing a person from speaking, is fear that what others say may convince somebody of something. Even worse, such opposition may show they want to limit free speech to their viewpoint alone.

Ironically, the more free speech is opposed, the more attention the expression gets. We get to learn about why football players are protesting – government sanctioned racial discrimination - and the positions of campus speakers who are silenced – sometimes extremely conservative.

One of the characteristics of the U.S., distinguishing it from most other countries, is the First Amendment. Elsewhere, government and laws often limit what people may say. While, like any other right, government may apply some limits, the American system favors debate in the sunshine as the best way to oppose views you don’t like.

You cannot fly the Nazi flag in some European countries. Just as the Europeans, millions of Americans engaged in a war against the Nazis. But government here cannot stop you from flying a Nazi flag. You are also free to demonstrate against this display, but government cannot legally tear down the flag or stop demonstrators.

Free speech is part of the American character. Expression has always been bold and outspoken. Belief in the Constitution and our form of government is strong enough to allow Americans to tolerate dissenting or opposing views. Sometimes, over the long term, the unpopular, minority view prevails.

In fact, people take pride in displaying the strength of a system allowing unpopular dissent. One often-quoted sentence embodies the concept: “I disapprove of what you say, but will defend to the death your right to say it.”

What about outright lies? They abuse the right. Individuals affected have the right to legal action. Otherwise, free debate should expose them. For example, the Washington Post Fact Checker does an excellent job keeping tabs on political claims. It is kept quite busy.

Trump’s attacks on NFL players who “take a knee” when the National Anthem is played reflect his natural petulance, playing to his supposed core constituency, trying to deflect attention from other issues by the use of phony patriotism, or all of the above.

The president has a right to express his views. The problem is that he is not acting presidential, breaking another of his campaign promises. How football players behave when the National Anthem is played is unimportant compared with leadership in dealing with the threat of nuclear war or natural disasters.

We expect the president to unify and lead, not always to seek or, worse, create domestic conflict. He needs to use carefully his right of free speech because of his position. If he disturbs the “domestic tranquility” promised by the Constitution, we worry.

College students who try to block campus speakers, whom they believe advocate views and policies that are wrong or dangerous, are undermining their own education. Free discourse allows us all not only to hone our personal values but also to better understand opposing views.

Freedom of speech is not a First Amendment right; it is a natural right. “All people are born equally free and independent, and have certain natural, inherent and unalienable rights.... Every citizen may freely speak, write and publish sentiments on any subject....”

Those are the words of the Maine Constitution, not the U.S. Constitution. The First Amendment is part of the Bill of Rights, but it does not explicitly reaffirm the natural right of each person to free speech, as does the Maine Constitution. It bans government from passing laws “abridging the freedom of speech” of all, not only citizens.

There may be problems with this “natural right” when the Supreme Court classifies corporate political spending as speech. That means all people get free speech, but some non-people may purchase it. Big money buys big talk, which threatens to drown out opposing views.

We all have to judge what we hear and read. Decisions about matters ranging from whom we support for president to where we choose to live are all based on what we have learned.

If you don’t want to hear a speaker, don’t listen. But don’t try to close the door for others.

Freedom of speech belongs to us, as listeners, writers, readers, and speakers. It’s our natural right.