Filibuster Abuse Will Lead to its End

The U.S. Senate decision last week to allow presidential appointees to be approved by a simple majority was a waypoint on the path of history.

The Constitution specifies only a few cases when Congress must have more than a simple majority to take action. Appointees need only a simple majority. So the vote should have been routine.

But Congress adopts its own rules.  When the Senate went to work in 1789, its rules allowed unlimited debate.  There was full discussion, but it seldom prevented votes.

By 1917, endless debate blocked voting on World War I issues.  Senate Democrats decided there had to be a way to bring “cloture” and ruled that debate could be cut off by a two-thirds majority.

Under the new rule, endless debate – filibustering – was confined to one or two bills a year.   

The former Confederate states had lost the Civil War, but their senators managed to block civil rights for African-Americans by using the filibuster.

By 1975, opposition to civil rights was crumbling, and Senate Democrats moved to make it easier to end debate, allowing debate to be ended by a vote of three-fifths of its members.

Both Republicans and Democrats used the filibuster to block the confirmation of presidential appointees.

One-time deals on appointees have been struck by the two parties, but they could not agree to change the Senate rules.

In recent years, the rate of filibusters has sharply increased.  For one thing, it was no longer necessary for the minority, having blocked cloture, to continue the debate.  Its filibuster threat was accepted in place of actually doing it.

The Republican Senate minority has resorted to using the filibuster threat hundreds of times to block legislation and to prevent President Obama from naming people to executive office or to the courts.

Endless debate had become a tool not to promote full and thoughtful discussion but with the open intent to introduce minority rule.

The Democrats threatened to use their majority to change the rule to allow decisions by a simple majority, but that change was thought to be so drastic that it was labeled “the nuclear option.”

In other words, majority rule in a democracy was considered to be as dangerous as a nuclear weapon.

Why?  Because either party might find itself in the minority at any given moment, so it would want today’s minority to have the kind of filibuster protection that it might want later.

By last week, Republican senators had made it clear they would not approve any appointees to the federal appeals court in Washington, D.C., although it is authorized by law to have 11 judges, and there are only eight now on the bench.

The GOP had no serious objections to the three Obama appointees.  But it feared that the ideological balance on the court could shift away from conservative domination by justices appointed by Republican presidents.  It wanted the court reduced to the current eight judges.

The GOP was unwilling to wait until there was a Republican president and Senate to change the number of judges, assuming it would do so if it had control.

While the Constitution provides that the president appoints federal judges subject to the “advice and consent” of the Senate, it does not suggest that a Senate minority should legislate by blocking presidential appointments.

With the frequent use of the filibuster, the rule could prevent a presidential election from meaning much in the face of a determined Senate minority.

So the majority Democrats drew the line.  They used their majority to rule that executive and judicial appointments below the Supreme Court should be subject only to a majority vote.

Maine’s two senators split their votes. Independent Angus King, who has softened his opposition to the filibuster, voted with the Democrats, saying “I am sorry it had to come to this.”

Moderate Republican Susan Collins showed she was more Republican than moderate.  As a moderate, she supported the blocked confirmation of an Obama appointee to the D.C. court. But she joined with all other Republicans to oppose the change to majority rule that would have made that appointment possible.

Collins called the vote “a terrible mistake.”  Presumably, she worried that future majorities could run wild, unchecked by the filibuster.

Perhaps a Senate run by a simple majority rather than by filibuster might do more to limit extreme legislation.  The majority would know that after the next election, the other party could gain the votes to reverse its actions.

 
Inevitably, the Senate will someday allow majority rule to apply to all appointments and all bills.  That’s the historical message of last week’s vote.

Obamacare Mess Influences Political Outlook

It would not be surprising if President Barack Obama now regrets that he went along with labeling the Affordable Care Act as “Obamacare.”

If it worked well, his name would always be attached to it. But what if it turned out to be a mess?

On the plus side, the ACA is a serious attempt to provide health insurance to tens of millions of Americans and to close some of the loopholes that allowed insurers to cherry-pick the market by, for example, refusing to insure those with pre-existing conditions.

But the negative side is overwhelming the good.

What’s wrong with the ACA, aside from the obvious failure of the online system for signing up for coverage?

Because of the way it was adopted, it is a complex and cumbersome method of extending coverage.  It squeaked through Congress without a single Republican vote even though then Maine GOP Sen. Olympia Snowe might have been willing to support it with some changes.

To pass it, the Democrats had to forego necessary changes to the bill for fear that further debate would allow the Republicans to kill it.  The lack of good leadership in either congressional party produced an unfinished law.

And Obama, as usual, seemed not to be a factor at all.

In Congress, there was not enough support for a single-payer system. Instead, the ACA is based on the theory that competition among insurers could produce results similar to government-only insurance elsewhere in the world.

The public-private plan is not working well. In some states, including Maine, there are few competitors, meaning there is little choice and no real cost reductions.

That means that one of the key promises behind the ACA, that it would lower ever-increasing health care costs, is not being realized.  In fact, some insurers boosted their rates before the law went into effect.

And one choice –“If you like your current policy, you can keep it” – is not possible if it doesn’t meet ACA standards.  This was Obama’s key promise to ease transition to the new system, but the promise was not kept.

The principal reason for health insurance reform was to expand coverage to almost all of the uninsured.  But that could only happen if the states went along with the expansion of Medicaid, and over half have refused.

Obama and the Democrats, faced with relentless Republican criticism, failed to explain and promote the ACA.  One of the main reasons the 2010 elections produced such success for the Tea Party movement was the success of its unanswered attacks on the new program.

The failure of the computerized system for signing up for insurance suggests that Obama and Kathleen Sibelius, the Secretary of Health and Human Services, thought the hard work was mostly done when the ACA was adopted.

Not only did they fail to inform the public, but they allowed the system to be developed without sufficient supervision and competent management.  Sibelius says she accepts responsibility.  What does that mean, if she’s not fired?

The damage caused by this vulnerable, patchwork program and its mismanagement goes far beyond the ACA mess.

Republicans have continuously attacked it, because they oppose any increased role for government, even in this hybrid public-private plan. 

A successful roll-out would have refuted their argument about government’s inefficiency.  That’s why the GOP made a last-ditch effort to defund it, just before the October 1 launch for signing up.

Their failure to defund it was coupled with the government shutdown they forced.  Voters opposed defunding and the shutdown.

Obama and Democrats began to look at the possibility of the 2014 elections giving them the ability to regain political control in Washington.  The ACA fiasco may have flipped the situation.

The president seems to have lost his self-confidence, hoping that if the system begins to work properly, people will forget this year’s problems. 

The ACA is beyond outright repeal, because its ban on refusing coverage for pre-existing conditions and extending coverage for young people on their parents’ policies are in effect.

Instead of the ACA’s momentum pushing GOP leaders to negotiate improvements, they maintain their steadfast opposition.  More voters may come to agree with them.

Hardcore conservative Tea Partiers, favoring repeal without proposing a viable alternative, may now stand to gain in next year’s elections, rather than losing ground to more traditional Republicans.  That’s the recipe for more Washington deadlock.

Ideally, both sides should agree to a short delay and a formula for fixing the obvious defects in the ACA.

 
Realistically, that won’t happen, and the ACA debacle may influence American politics for years to come.

Social Security Now a National Pension Plan

“The Good Life for Less.”  That’s the title of an article in the latest issue of the AARP magazine.

Its focus is finding places to live where a couple can get by on their Social Security payments.  Bangor is one of the five featured places from across the country.

Living on Social Security and not much else has become common.  Two-thirds of retirees receive more than half their income from the federal retirement program.  About 35 percent get virtually all their income from it.

Social Security is the biggest single source of retirement income, well ahead of the combination of private sector and government pensions.

In effect, Social Security has gradually become this country’s universal pension program.  In light of the opposition to having single payer health care insurance, it may be surprising that the U.S. has a single payer retirement plan.

It didn’t start out that way.  President Franklin D. Roosevelt led the effort for Social Security, because the Depression had driven more than half the people over 65 into poverty.

In the 1930s, older people were expected to live only a couple of years after they reached 65.  So the plan would provide end-of-life support, when added to savings and pensions, rescuing older people from a poverty they could not otherwise escape.

Just like the Affordable Care Act, Social Security was attacked from by conservatives, who claimed it was big-government socialism.  So they challenged it before the U.S. Supreme Court.

The Court ruled that it was within the power of the federal government to create the program, because it was based on the government’s taxing power, which is almost absolute.

That’s exactly the same reasoning that the Court used to rule that the Affordable Care Act – Obamacare – is legal.

Perhaps someday the Affordable Care Act will become embedded in the American way of life and be considered just as essential as Social Security.  But, unlike its predecessor, the ACA is a hybrid public-private program and is far more complex.

At the outset of Social Security, nobody suggested the country was getting itself into a national retirement plan with the government as its source of finance and management.

Social Security has been financed out of the revenues from payroll taxes of current workers and their employers.  Except at the start, they have always exceeded outlays.

But that will not continue as there are more retirees and fewer contributors.  Because so many depend on Social Security, it is inconceivable that the program can be sharply reduced, meaning that at some point, general tax revenues would have to supplement the payroll tax.

Some believe that if Social Security funds were invested in the stock market, gains there would keep payments up without resorting to general funds.  They also would like to reduce the role of the federal government.

The problem with that proposal is that the stock market is not reliable enough to make it possible to count on the steady income flow needed to support fixed retirement payments.

But something needs to be done to make sure Social Security costs are manageable.

The retirement age used for full payments is already increasing, and it may have to go up even more as life expectancy grows.

It seems likely that Washington will change the method of calculating the inflation adjustment, which will mean lower annual increases and lower federal costs.

The payroll tax as a share of income has not been increasing as fast as have the incomes themselves.  The cap on the amount of employment income subject to the Social Security tax would have to be increased.

One way to do that would be simply to remove the cap.  The wealthiest people might never receive payments equal to what they had contributed, but it’s unlikely they would suffer a seriously adverse effect.

Or the payroll tax could be gradually eliminated and the income tax increased accordingly.  Lower income, employed people, who might not otherwise pay taxes, could be required to pay a minimum income tax.

And Congress should not add on new programs to be financed through the Social Security tax without ensuring they pay for themselves.  Today, both disability and Medicare operate at a loss and are eating into their reserves.

What’s clear is that the country has become dependent on Social Security.  That makes it imperative for Washington to deal with it before revenues become inadequate.

 
Social Security shows how single payer health insurance might work. But it also shows that any federal program needs constant effort to keep it financially viable.

Anti-terrorism vs. Privacy

Gen. Keith Alexander, the head of the National Security Agency, believes the threat of terrorism is so great that his agency can invade the traditional American personal right to privacy.

U.S. Rep. James Sensenbrenner, a Wisconsin Republican and one of the authors of the USA Patriot Act — used by Gen. Alexander as the basis for his agency’s actions — believes the NSA goes well beyond what Congress intended in reacting to the 9/11 attacks.

Between them, they reflect an historic battle over the role of government in protecting Americans and the rights of Americans to be protected from a powerful government.

The Patriot Act was an almost reflex reaction to the al Qaeda attacks in 2001. Congress gave the government unprecedented intelligence capacity, trying to make sure that terrorist attacks could be thwarted before they took place.

In the face of an external threat, the United States has a history of taking drastic action to show a sense of national resolve.

After Japan attacked American forces at Pearl Harbor, American citizens of Japanese origin were thrown into prison camps and their property was seized.

When the Soviet Union loomed as a dangerous rival for world power, American planners credited them with a vast military capability that required an even greater response in U.S. military spending. Other public goals were sacrificed to support that spending.

Eventually, some Japanese- Americans were freed and provided heroic military service in World War II.

And when the Soviet Union collapsed, Americans learned that we had greatly overrated its military capability.

Are we now sacrificing the rights of Americans, because we overrate the terrorist threat?

We may be, according to a recent article in Scientific American magazine. The report summarizes several studies discussing the “myths” attached to our understanding of terrorism.

First, it reported that, despite fears of terrorism’s goal being the spread of “radical Islam,” Islamic extremists are motivated not by ideology but by their belief that the U.S. has targeted Muslims, or by revenge for American support of Israel and intervention in Iraq and Afghanistan.

Terrorism is not a “vast global network.” Instead, it is decentralized and based on social networks. In other words, it’s more about family and friends than some central mastermind.

And terrorists are not clever planners. After the top leaders are gone, they have shown themselves to be “incompetent fools.”

Terrorism is a lot less deadly that might be thought. Since 9/11, there have been about 13,700 homicides a year in the United States — with 33 deaths since then caused by terrorists.

Finally, terrorism doesn’t work. Terrorists have failed to achieve their goals. Their groups last an average of eight years and their leaders generally don’t survive.

Of course, these conclusions do not relieve the government of the responsibility to deter and prevent terrorists. But they suggest that the threat might be met without broad incursions on the privacy rights of Americans.

After 9/11, almost no member of Congress wanted to appear “weak” in responding to the terrorist threat. That sentiment produced the Patriot Act.

As tough as that law has been in limiting traditional civil liberties, government agencies have interpreted it to be even tougher. And the sole control has been the secret Foreign Intelligence Surveillance Act Court.

In that court, everybody from Google to the average citizen could be put under surveillance without even knowing about the proceeding or being able to argue against invasion of their privacy.

In other words, the post 9/11 mechanism of the federal government has said that, in order to protect Americans from terrorists, it would have to reduce individual rights — the very values at the heart of the country. And that trade-off has been made without a vote by representatives of the people.

Now, Sensenbrenner and Democratic Sen. Patrick Leahy of Vermont have written a bill called the USA Freedom Act, designed to somewhat rein in the NSA.

The bill would prevent the sweeping collection of data on American citizens and would create a Special Advocate to defend the “civil liberties” of those to be placed under surveillance. It would require more public information about the activities of the FISA Court.

Interestingly, the bill has the support of groups, ranging from the National Rifle Association to the American Civil Liberties Union.

Among the first 88 U.S. House and 16 Senate members sponsoring the bill is U.S. Rep. Mike Michaud. Many members of both parties — liberals and conservatives— have signed on, rare in this era of political polarization.

 
Sponsors take the position that if counterterrorism is meant to protect American freedom, it must also respect it.