Archive for April, 2005

History and the Filibuster

Sunday, April 17th, 2005

“[The] Senate of the United States is the only legislative body in the world which can not act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” — President Woodrow Wilson.

It was only five years ago when Democrats were doubled over in acute political pain as George W. Bush’s victory the 2000 election punched Democrats in the gut. Bush won with a narrow margin in the Electoral College and just as narrow a loss in the popular vote. Although the Constitution is clear about how a president is elected, we heard a never-ending torrent of complaint that the Electoral College was antiquated and should be reformed. The will of the people as reflected in a direct majority, as opposed to assent filtered through the structures of a republican government, should be supreme.

Democrats today are not so sanguine about majorities. Now they sing of the virtues of the legislative filibuster, the tool of a persistent minority. Democrats condescendingly explain that the Senate should be a “cooling saucer,” preventing the government from being swept along by a fervent majority. Nonetheless, the current debate over the legislative filibuster has the virtue of forcing us to re-examine the underpinnings and assumptions of both Constitutional provisions and legislative rules.

The current controversy is centered around the duty of the Senate to “advise and consent” on Presidential appointments of federal judges. President George W. Bush has nominated a number of judges to the Federal bench that Democrats are holding up. If brought to the floor, most if not all, of these nominees would win confirmation with a majority. However, Democrats in the minority can exploit the filibuster rule that, in effect, requires a 3/5 majority (60 Senators) to close debate and bring the nomination to the floor of the Senate for a vote. Hence, with only 41 Senators, a minority is able to reject a presidential nomination.

There is no doubt that Senate rules allow for this outcome. However, there is procedure by which a simple majority can change the filibuster rules to prevent them from being applied to judicial nominations. This is either the “nuclear option” or the “Constitutional option” depending on the spin one wishes to apply. Democrats are crying foul, embracing a claim to defend the rights of minority.

The real history of the filibuster is a complicated and interesting one. Gold and Gupta provide a comprehensive review in a scholarly article in the Harvard Journal of Law and Public Policy [1]. In identical wording, the Constitution provides that both the Senate and the House can make their own rules. In the very first Senate, there were no filibuster provisions. Following the common practice of the time, including the Continental Congress and the British House of Commons, and the present rules of House of Representatives, a simple majority can end debate and bring anything to the floor for a vote.

In the 1806 codification of the Senate rules by then Vice-President Aaron Burr, there was acknowledged oversight which allowed for unlimited debate. Rather than filibusters in the Senate being a Constitutional provision, filibusters were introduced by accident. The use of unlimited debate to prevent bringing a bill to the floor was first employed in disputes over the Bank of the United States in the 1830s. Though the filibuster was infrequently used, for 111 years (1806 to 1917), a single Senator could prevent a vote on a bill by simply continuing talk. This is the ultimate in minority rights. A single Senator could stop the Senate from action.

In 1917, isolationist Republicans used the filibuster to make it more difficult to President Woodrow Wilson to prepare for war. Using the threat of eliminating the filibuster rules altogether, a compromise change in rules was agreed to. Two-thirds of the members of the Senate could vote “cloture” to end the filibuster.

During the rest of the 20th century, the filibuster was used most effectively by Southern Democrats to bottle up civil rights legislation. Again in response to the threat of a drastic limitation of the filibuster, rules were slightly modified in 1959 to allow for cloture with 2/3 present as opposed to 2/3 of the entire Senate. Further limits were agreed to in 1975 when cloture could be evoked by 3/5 of the Senate (60 senators). Further reforms were pushed through by Senator Robert Byrd (who now worships the filibuster as a member of the minority) to provide alternative means to limit debate.

In short, the Senate rules about filibuster, instituted by accident, are just rules than can and have changed from time to time. The filibuster is not unconstitutional nor is it any way required by the Constitution. It is not a gift from our Founding Fathers, but an accident.

The recent use of filibuster to prevent the President’s judicial nominees from receiving an up-or-down vote in the full Senate is, if not unprecedented, at least very rare and a recent phenomenon. Save for the large number now being filibustered by Senate Democrats, the only previous use was during the confirmation of Abe Fortas for promotion from a Supreme Court justice to chief justice. In 1968, Republicans were concerned about the ascension of a liberal justice following the expansive rulings of the previous Warren Court. However, the Abe Fortas case was atypical since it was revealed in hearings that Fortas kept President Lyndon Johnson informed of the secret deliberations of the Court and had accepted what seemed to be excessive and inappropriate private payments for teaching a summer course at American University. This is hardly the precedent, Democrats should base their current opposition to nominees for whom the only objection is one of political philosophy.

The current debate about filibusters can have an important impact on future Senate actions. However, the current tussle is one of political wills, not of constitutional dimensions.

If the situations were reversed, we know that Republicans and Democrats would have different arguments. We know this because situations were once similarly reversed. During the Clinton administration, Republicans kept some of President Bill Clinton’s nominees from coming to a vote on the Senate floor. Rather than needing a filibuster, Republicans were able to bottle up some nominations by the more conventional process of not reporting the nominees out of committee by a majority of the committee.

At that time Barbara Boxer (D-CA) had different position with respect to judicial nominees when she said, “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.” Similarly Diane Feinstein (D-CA) averred, “Our institutional integrity requires an up-or-down vote.” The dean of Senate Democratic Senators Edward Kennedy (D-MA) indignantly argued, “We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.”

It must be the mark of a truly agile politician to be able to argue both sides of an issue with equal measures of sincerity. The question is now whether Republicans will call the Democrats bluff and end the filibuster of judicial nominees.


  1. Gold, M. B. and D. Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,” Harvard Journal of Law and Public Policy, vol. 28, 68 pages, 2004.

Going After Wal-Mart

Tuesday, April 12th, 2005

At over $55,000 per year, the state of Maryland enjoys one of the very highest household median incomes in the country. It is reasonably well insulated from business cycles by its geographical proximity to that well spring of spending: the federal government. Yet despite this, Maryland is running a budget deficit. Its government is so poorly run that Nathan Chapman Jr. a money manager was found guilty of defrauding the state retirement system last year. With this background of achievement, it is no wonder that the legislators of the state feel competent to tell Wal-Mart how to run its business.

This week the Maryland state legislature passed a bill directed against Wal-Mart. The bill specifically states that any private company in Maryland employing more than 10,000 people must spend at least 8% of its payroll on health care. Although there are a couple of companies as large, Wal-Mart is the only one for which the bill has any relevance.

Wal-Mart provides benefits for most its full-time employees. Wal-Mart’s strategy is to hire relatively few full-time employees with full-benefits supplemented by part-time employees including those elderly greeters at the front door who are, in many cases, covered by Medicare. This formula of efficiency and low prices has worked for Wal-Mart which has seen spectacular growth.

Many states will make foolish specific concessions to companies like Wal-Mart to entice them to enter. Maryland must be pretty well off if it not only eschews these advantages, but latches on to the anti-corporate Left-wing zeitgeist and directly penalizes Wal-Mart.

One might have been sympathetic if Wal-Mart were intruding into a small area and driving out Mom and Pop operations, while assuming monopoly control with their relentless efficiency. In the case of Maryland, however, the largest anti-Wal-Mart whiner is Giant Food Corporation that had grown fat in a grocery market oligarchy it dominated until Wal-Mart moved in. So the Maryland legislators get to have it both ways: They hobble the competitor of a politically-powerful Dutch-owned company, Ahod, the parent company of Giant, while at the same time congratulating themselves for championing the working class.

One indication of how little thought went into the legislation is the fact that it is rather poorly crafted. Should the measure of health care be the cost? Though health care has certainly improved over the last decade, costs grew faster. What if Wal-Mart was able to provide a medical plan superior in coverage to a more expensive plan at the cost of 6% rather than 8% of payroll? Maryland’s legislature again revealed the Liberal tendency to measure effectiveness as money spent rather than product or service out.

Wal-Mart’s present status with respect to provision of health care is complicated. The Maryland’s Citizen’s Health Initiative claims Wal-Mart spends 3.5% of its payroll on health care. While Wal-Mart claims that 56% of its workers are covered through its medical plan, while 86% are covered through medical plans of some sort: medical coverage through a spouse or some other alternative.

Wal-Mart with its 15,000 employees in Maryland now has several non-exclusive choices in complying with the Maryland law. They could just pass on additional costs to consumers, hurting customers that tend to be working class people for whom price is critical. Wal-Mart could partially balance increased health care costs by laying-off workers to meet the legislatively mandated 8% number. Or, they could meet the 8% legislative mandate by increasing the generosity of health care benefits for higher-paid full-time workers and still ignore part-time workers.

Most likely they will employ some combination of the above. The immediate loser may be the less-affluent Somerset County, Maryland. Wal-Mart had planned on building a distribution center in the county that would employ 1,000 people. Wal-Mart is now reconsidering these plans. Fortunately, for the Maryland legislature, those potential employees probably do not realize that they lost prospective employment. Maryland legislators can still sip wine at the cocktail parties while they congratulate themselves on their moral sensitivity in using someone else’s money to stand up for the working class. They should be so proud of themselves.