Obsidian Wings

Filibusters Again

by hilzoy

Steve Benen, Matt Yglesias, and Kevin Drum are all calling for reform of the filibuster. I agree. I am of two minds on the question of eliminating it entirely. (To anyone who thinks it's just obvious that the filibuster should be eliminated, I have three words for you: Janice Rogers Brown.) But what seems absolutely clear is that if it is kept around, it ought to be transformed back into a tool that is actually painful for the minority to use, and that they will therefore use only when they feel very, very strongly. As Kevin wrote:

"The filibuster was never intended to become a routine requirement that all legislation needs 60% of the vote in the Senate to pass.  But that's what it's become.  It's time for reform."

I don't think it's enough, though, to say that Senators who want to filibuster should be made to actually stand up and speak for hours on end. To see why, consider this:

"While a filibuster would seem to be more taxing on the side doing the talking, that isn't necessarily the case. The filibusterers need only one person in the Senate chamber at any one time, prattling away. The other side must make sure a quorum -- a majority of all senators -- is on hand, a constitutional requirement for the Senate to conduct business. If there's no quorum after a senator has demanded a quorum call, the Senate must adjourn, giving those leading the filibuster time to go home, sleep, and delay things even more. To ensure a quorum during the rancorous civil rights filibusters, cots were set up in Senate anterooms, and majority senators presented themselves in bathrobes during early-morning quorum calls.

Those seeking a quorum can even demand that the Senate's sergeant at arms arrest senators who aren't present and drag them into the Senate chamber, a measure that has led to absent senators playing hide-and-seek with police officers around Capitol Hill. As recently as 1988, officers physically carried Sen. Robert Packwood onto the Senate floor at the behest of then-Majority Leader Byrd."

This means that the pain of filibusters falls disproportionately on the side that is trying to end debate, not on the side that is mounting the filibuster. Senators do not like to hang around the Senate all night long. Sometimes, they would rather catch up on their sleep, go to fundraisers, fly back to their districts, or do whatever else they feel like doing. As things stand now, only one Senator from the side mounting a filibuster has to give up the rest of his or her life in order to be present in the Senate. The rest of them can just catch up on their beauty sleep. The side that is trying to end the filibuster, by contrast, has to keep almost all its members around in case of quorum calls.

If we're going to reform the filibuster, this has to change. The Senate might make cloture votes require 60% of the votes of those who are present and voting, for instance. That would mean that the side that was mounting a filibuster would have to keep all its members around for the duration. Alternately, the Senate might adopt a rule that said that during filibusters, if a quorum was not present, the Senator who was speaking could decide to go on speaking or to allow a vote on cloture, to be decided by a majority of those present and voting. If s/he decided to go on speaking, s/he could do so, but no other Senate business could be conducted until the next business day. If s/he opted for the cloture vote, it would take place.

There might, for all I know, be problems with either of these proposals. And there's probably an even better proposal out there. But what has to change, I think, is the fact that Senators can now declare their intention to filibuster and either have their way (if no one forces an actual filibuster), or visit considerable inconvenience on their opponents (if a filibuster is forced), without having to suffer the same inconveniences themselves. 

That's an incredibly perverse set of incentives. It might have been designed to create the idiotic situation we have now, in which a party that has seventeen fewer Senators than the other is nonetheless in a position to dictate what the majority party can pass, not just on issues on which they feel very strongly, but as a matter of course.

One More Reason Why I'm Glad I'm Not An Ant

by hilzoy

From the New York Review:

"Some ant species do not have queen ants in the strict sense. Instead, worker ants (which are all female) that have mated with a male ant become the dominant reproductive individuals. These are the gamergates, or "married workers," and their sex life can be brutal. In one species the gamergates venture outside of the nest to attract a male, engage him in copulation, then carry him into the nest before snipping off his genitals and throwing away the rest of his body. The severed genitals continue to inseminate the gamergate for up to an hour, after which they too are discarded."

I really wonder whether the argument from design would have survived a close acquaintance with the habits of insects around the world. This arrangement, at least, does not make the idea of a benevolent deity leap to mind.

The Ghost of Mr. Toomey

by publius

Arlen Specter claims that several Congressional Republicans are secret stimulus supporters.  It’s all so very tragic – the stimulus support that dare not speak its name.  Who knows if he’s correct, but it sounds very plausible to me.  Especially this part:

"When I came back to the cloak room after coming to the agreement a week ago today," said Specter, "one of my colleagues said, 'Arlen, I'm proud of you.' My Republican colleague said, 'Arlen, I'm proud of you.' I said, 'Are you going to vote with me?' And he said, 'No, I might have a primary.'”

I know it’s fashionable this week to treat the near-unanimous Republican opposition as a failure of the Democrats.  But maybe – just maybe – the lockstep opposition is a symptom of a deeper problem within the Republican Party.  Maybe it’s even a sign of how ideologically rigid the GOP has become.

I’ll be honest – the unanimity surprised me.  I know the fiscal stewards in the GOP caucus are vigilant about spending, but the stimulus bill should have been harder to resist.  For one, it has big public support.  Second, it’s going to help a lot of people in a lot of struggling congressional districts.  And while I understand the GOP leadership’s political tactics, it still seems weird that the virtually the entire caucus felt brave enough to vote against the bill (especially when at least some supported it).

The more likely explanation for all this comes from Specter – simply put, many of them feared a primary challenge.  The specter of Toomey looms large in their heads. 

Unlike Specter though, most of the remaining GOP legislators are from districts where they don’t really have to worry about general elections.  To them, the only potential threat is a primary challenge now that GOP districts are fewer but more ideologically homogeneous.  In these districts, it’s not what the median voter wants, but what the (*shudders*) median GOP voter wants.

But that’s not really surprising.  What’s more interesting is that the more vulnerable GOP officials from moderate districts also voted against the stimulus.  Indeed, for those who serve Obama districts, it was borderline irrational to oppose this bill – unless of course you’ve concluded that a primary challenge is more dangerous.  Specter’s anecdote provides some support for that view.  The "seething" anger at Crist provides another interesting data point in support.

So assuming that primary fears explain a lot of these votes (if you disagree with that assumption, you’ll obviously disagree with the conclusion), I think the real story here should focus on the GOP, rather than on the Democrats.  The vote shows that the GOP has become so ideologically rigid and ossified that its rank-and-file is afraid to stray from the party line – or to challenge orthodoxy.  (I would argue that the lockstep support for Bush stemmed from these fears as well). 

Of course, lockstep submission can be an effective tactic if your leaders are doing smart things.  But if they’re forcing you to take increasingly extreme positions, then that forced discipline becomes a real long-term problem both for you individually and for the party. 

And even assuming the leadership’s tactics are right on this particular issue, the fear to experiment with new ideas and to embrace new policies (e.g,. Douthat-style Sam Club-ism) will ultimately cause levels of harm that more than offset whatever fleeting points the great genius Mark Halperin decides to award this week.

Juxtaposition Of The Day

by hilzoy

From National Review's list of the 25 best conservative movies:

"12. The Dark Knight (2008): This film gives us a portrait of the hero as a man reviled. In his fight against the terrorist Joker, Batman has to devise new means of surveillance, push the limits of the law, and accept the hatred of the press and public. If that sounds reminiscent of a certain former president -- whose stubborn integrity kept the nation safe and turned the tide of war -- don't mention it to the mainstream media. Our journalists know that good men are often despised by the mob; it just never seems to occur to them that they might be the mob themselves. 

13. Braveheart (1995): Forget the travesty this soaring action film makes of the historical record. Braveheart raised its hero, medieval Scottish warrior William Wallace, to the level of myth and won five Oscars, including best director for Mel Gibson, who played Wallace as he led a spirited revolt against English tyranny. Braveheart taught that freedom is not just worth dying for, but also worth killing for, in defense of hearth and homeland. Six years later, amid the ruins of the Twin Towers, Gibson’s message resonated with a generation of American youth who signed up to fight terrorists, instead of inviting them to join a “constructive dialogue.” Liberals have never forgiven Gibson since."

I have this quaint belief that freedom involves the rule of law: the idea that no one -- not the government, and not private vigilantes -- gets to spy on me, imprison me, or kill me without working through normal legal channels, whose content I get to influence by electing the people who write the laws. That the writers at the National Review take a different view has been obvious for a while -- see, for instance, Kathryn Lopez on McCain :

"I'm second to none in praising him on his surge leadership. But on a whole host of issues --including water boarding, tax cuts, and the freedom of speech -- he’s not one of us."

I just liked this particular juxtaposition. According to the National Review, conservatives fight for freedom, but what they mean by "freedom" is wholly unclear. It's certainly nothing I recognize. 

And when I read a sentence like "Our journalists know that good men are often despised by the mob; it just never seems to occur to them that they might be the mob themselves", I think: our National Review writers know that people can fight for tyranny and against freedom without ever admitting to themselves that that's what they're doing; it just never seems to occur to them that they might be those people.

You Can't Make This Stuff Up

by publius

Rep. John Mica, Roll Call Vote H.R. 1:

Nay

Press Release, Rep. John Mica:

 

(h/t Benen).

Deep Thought of the Day

by publius

The Lieberman amnesty is proving to be a wise decision (that's non-sarcastic, just check the link).

State Secrets: Updates

by hilzoy

Two bits of welcome news. First, Sens. Leahy, Kennedy, and Specter have reintroduced the State Secrets Protection Act (S. 417). Thomas doesn't have the text yet, but Leahy's press release claims that "the legislation was initially proposed in the 110^th Congress", which sounds as though it is the same bill described here. That bill states that the State Secrets Privilege can normally not be used to dismiss an entire case or claim. Moreover, it states (4054(c)):

"A Federal court shall conduct a hearing, consistent with the requirements of section 4052, to examine the items of evidence that the United States asserts are subject to the state secrets privilege, as well as any affidavit submitted by the United States in support of any assertion of the state secrets privilege, and to determine the validity of any assertion of the state secrets privilege made by the United States."

That means that it would no longer be possible for the government to get a case dismissed, or a piece of evidence suppressed, simply by claiming that national security requires it. A judge would have to look at the evidence and decide that the government was right. This is enormously important. I hope it passes, and soon: the State Secrets privilege in its present form is an invitation to abuse.

Second, from the Washington Post:

"The British government said yesterday that it is dispatching a team of officials, including a police doctor, to Guantanamo Bay to visit a former British resident on a hunger strike to be prepared for his return home to the United Kingdom.

The statement by British Foreign Secretary David Miliband stopped short of saying that the Obama administration has decided to release Binyam Mohammed, a native of Ethiopia whose case has been the subject of high-profile litigation in Washington and London. But the step appears to be a prelude to release, and it is one of the first overt indications that the Obama administration is accelerating the process of freeing some prisoners to meet its goal of closing the U.S. military prison in Cuba."

Binyam Mohamed is one of the five plaintiffs in the case in which the Obama administration invoked the State Secrets privilege last Monday. (He's the one who was identified as a terrorist when he confessed, under torture, to have read a spoof article by Barbara Ehrenreich about how to build an H-bomb, and afterwards had his penis sliced up.) Charges against him were dropped months ago. I hope the reports that he will be released are accurate. (He is the only one of the five plaintiffs in this case who is still in US custody. Here are biographies of the others: 1, 2, 3, 4.)

One of the many things that bothered me about the Obama administration's invocation of the State Secrets privilege in this case was the apparent indifference to justice. It seemed to be all about what was convenient for the government, and not at all about allowing people who allege horrific treatment at our hands to have their day in court. I still hate the invocation of the State Secrets privilege. And I do not for a moment think that releasing Binyam Mohamed constitutes justice in his case, let alone in the cases of the other plaintiffs. But it is something beyond blank indifference. I suppose it says something about how low my expectations are that that matters to me.

***

While I'm on this topic: Mohamed's lawyer has alleged that DoD officials censored a letter that he sent to Barack Obama about what his client had gone through. His evidence seems to be that he (the lawyer) got a redacted copy (pdf) of the letter back. I agree with Ken Gude at CAP that this is implausible:

"Whatever the motivations of the DOD official that blacked out the material attached to Clive’s letter, it was certainly not to prevent President Obama from seeing it. In order for that to be true, we would have to construct a scenario in which a presidential aide brings to Obama this letter asking that specific information be de-classified, but when Obama asked what information, he was handed two completely blacked out pages and that’s the end of the story. Seriously, does that sound plausible?"

More to the point, does it sound plausible that some DoD official could have blacked out these pages in order to keep Obama from seeing them and succeeded? The President can see any classified information he wants. And if I were trying to prevent him from seeing something, handing him a letter with two pages blacked out would not be my method of choice.

Ladies And Gentlemen: The Party Of Ideas

by hilzoy

Erick Erickson shows us the kind of fresh new thinking that I have come to expect from the Republican Party:

"The most radical, and effective, thing we could do for the economy right now is this: Stop collecting all forms of Federal business, income and payroll tax. EVERY PENNY OF IT. RIGHT NOW.

Gasp! Yes, I said it, and I meant it. Go on an absolute, 100% Federal tax holiday. That’s a real shot in the arm that would suddenly inflate the economy by a solid $1.5 trillion or more per year.

Are you worried about the resulting fiscal deficits? Don’t be. There is a huge amount of demand for debt from global investors, and the credit crunch has blown a huge hole in private debt formation. That leaves a lot of room for the government to borrow more."

That certainly is a radical proposal. But "the most radical thing we could do for the economy"? I don't think so. If we really don't have to worry about deficits, Erick's proposal seems pretty small-bore. Why not help Americans deleverage by having the government buy up all individual and corporate debt? That would help get the economy moving again! Why not provide health insurance for everyone, along with Supertrains, flatscreen TVs, living room suites, and a lifetime supply of chocolate? And why hasn't he mentioned this to his co-bloggers at RedState, so that they can stop writing things like this?

"Do the Blue Dogs care about balanced budgets? Do they oppose wasteful spending? Are they the taxpayer’s best friend, the conscience of the Congress, and the moderates who craft bipartisan solutions? Today is the day to prove it."

Or this:

"A $789 billion spending bill, all of which will have to be borrowed and later repaid by our progeny, cannot possibly be “fiscally responsible.”"

It's almost as though the people at RedState are applying, well, a double standard: they care about fiscal responsibility when it comes to spending money to build schools or fix bridges, but all that concern just flies out the window when it comes to tax cuts. 

The Silence Of The Left

by hilzoy

Ben Smith at Politico has a story called 'Left Silent On Social Security, Medicare':

"Strikingly, however, Obama appears to be getting unusual room to maneuver on entitlements by most of his liberal allies. On the subject of entitlement reform, in fact, Obama’s honeymoon continues — at least in the unlikely precincts of the Democratic left, a counterintuitive development that has buoyed the spirits of reformers who would like to see drastic changes in the way Social Security works. (...)

The relative silence of liberal activists who smashed Bush’s hopes of slowing entitlement spending is a mark of the deep trust Obama enjoys from the left of his party — and it’s also giving hope to those who would like to see major shifts in the way Social Security and other programs are funded and managed."

Speaking for my personal corner of The Left: I am not silent because I am prepared to let Obama do things I would have criticized had Bush attempted them. I haven't written about entitlement reform for two main reasons. First, Obama hasn't yet said anything specific about what, if anything, he intends to try to do. And second, this is one of those issues where the details really matter.

For one thing, I believe, as a lot of people do, that there is no "crisis in Social Security, Medicaid, and Medicare". (See Figure 1.1 of this report (pdf)). Insofar as there is any problem with Social Security, it is not urgent, and can be fixed by minor tweaks like raising the cap on payroll taxes. We do have a problem with Medicaid and Medicare, but that is due to the fact that we have a much more general problem with rising health care costs. Spending on Medicaid and Medicare has risen less rapidly than spending on health care generally over the past decade:

"Entitlement reform" can mean any of a number of things. On Social Security, it might mean a privatization plan like Bush's, or it might mean something like raising the cap on payroll taxes. If Obama plans to try the first, he will not get any silence or benefit of the doubt from me. I thought it was a terrible idea when Bush proposed it, and I think it's a terrible idea today. If he wants to raise the cap on payroll taxes, on the other hand, I don't have a problem with that.

Similarly on Medicare and Medicaid. There are a lot of good ideas out there about how to reduce spending on health care (the CBO lists 115 of them in this pdf alone.) Obama claims that he will make this a priority, and I'm all for that. But if he tries to gut Medicare or Medicaid, that would be entirely different.

Or, in short: once Obama comes out with specific proposals on entitlements, I will say something about them. Until then, my little piece of the Silence of the Left should not be taken to reflect anything more than not knowing what, exactly, he proposes. (It's certainly not that I am "afraid to express concerns", as Rep. Jim Cooper suggests in the Politico piece.) Some things that go by the name of "entitlement reform" are fine. Others are not. If Obama proposes the latter, there will be no "honeymoon" or "breathing room". But until I have some idea what, exactly, Obama proposes to do, I don't really see much point in speculating. 

And if my failure to comment on this has "buoyed the spirits of reformers who would like to see drastic changes in the way Social Security works", they have a surprise in store for them.

Charming Company You've Got There

by publius

Even for the most cynical, this one was hard to believe.  The Post ran a story today about how more employers are challenging the unemployment benefits claims filed by their former employees.  Generally speaking, employees are entitled to these benefits unless they were "fired for misbehavior" or quit.  The ultimate benefit to the companies is lower unemployment insurance rates.

Anyway, the company here -- Gaylord National Resort and Convention Center -- apparently decided to just start making stuff up about their laid-off employee while no one was looking:

"I couldn't believe it," said Kenneth M. Brown, who lost his job as a hotel electrician in October.

He began collecting benefits of $380 a week but then discovered that his former employer, the owners of the Gaylord National Resort and Convention Center, were appealing to block his unemployment benefits. The hotel alleged that he had been fired for being deceptive with a supervisor.

"A big corporation like that. . . . It was hard enough to be terminated," he said. "But for them to try to take away the unemployment benefits -- I just thought that was heartless."

After a Post reporter turned up at the hearing, the hotel's representative withdrew the appeal and declined to comment. A hotel spokesperson later said the company does not comment on legal matters.

Charming.  I'll go out on a limb and guess that a lot of the employers' challenges where national reporters don't happen to show up aren't valid either. 

The disparities in resources here is a serious concern -- both from a legal and information cost perspective.  That's one reason why you want a Labor Department that, you know, cares about labor.