Process Matters

I agree with Jonah Goldberg’s sentiment that the Senate will function better once we “have more partisanship about ideas and less about process.” His point is that Democrats under Harry Reid’s stewardship have been so eager to protect vulnerable members from taking tough votes that they have argued entirely over process rather than ideas.

This is undeniably true, as the Wall Street Journal chronicles today in its lead editorial:

“[Democratic Senators] have also been handmaidens to Harry Reid , the Majority Leader who has devoted the last four years to protecting Mr. Obama while turning the Senate into the world’s least deliberative body. Next Tuesday’s vote is above all a referendum on whether the Senate will spend two more years in this Obama-Reid dead zone.”

[…]

“In the media’s telling, gridlock in Washington is due to tea party pressure on House Republicans to resist Mr. Obama’s agenda. There is some of that, reflecting different views of government. But at least the House debates and votes in plain sight. Mr. Reid won’t allow the normal give and take of democratic voting and accountability that is the reason to have a legislature.

The Reid shutdown runs even to the core legislative function of funding the government. The House has passed seven of 12 annual appropriations bills, most with big bipartisan majorities. Chairman Barbara Mikulski has passed eight of the 12 out of her Senate Appropriations Committee, and Republicans wanted to debate. Mr. Reid blocked a floor vote on every one.”

[…]

“Wyoming Republican John Barrasso kept a running tally of Mr. Reid’s amendment blockade through July. In the previous 12 months Senators introduced 1,952 amendments—1,105 from Republicans and 847 from Democrats. Mr. Reid blocked all but 19.

Legislation? Mr. Reid has blocked at least 10 bills sent to him by the House that passed with notable bipartisan support. Some 35 House Democrats voted with Republicans to delay ObamaCare’s employer mandate; 46 Democrats voted to expedite the approval of liquefied natural gas exports; 130 Democrats voted for patent-reform legislation; 158 Democrats voted to expand access to charter schools; and 183 Democrats voted (in a bill that passed 406-1) to exempt certain veterans from the ObamaCare employer mandate. Mr. Reid’s response: No debate, no vote.”

Progressives have largely made peace with the fact that they are now an “ends justify the means” party and as a result have formally abandoned any respect for process. And yet process is their great weapon of the moment, used to protect Democrats from an unpopular agenda by freeing them from accountability and blaming gridlock on Republicans for “obstruction” (yes, Huffington Post created its very own “Senate Obstruction” tag). It is a grand illusion of activity meant to hide the fact that substantive debate is not happening. And so I agree with Goldberg that escaping the procedural bog in order to emphasize meaningful policy debate is the way forward out of the wretched Reid Senate.

The problem is that, in our system of government, process is still extremely important. The fact that Harry Reid and Democrats (and especially the national media which has been criminally silent on this for the most part) have decided to openly ignore process and not allow debate or roll call votes is a national scandal. Or at least it should be. Instead, the progressive bubble has convinced itself that the shutdown was the great sin against good government, not Reid’s blatant destruction of Senate tradition. The shutdown was a non-event of course. Federal workers got paid throughout (because of course they did) and the government actually went out of its way to make the shutdown feel worse than it was by closing off public viewpoints to Mt. Rushmore, harassing tourists at Yellowstone and ringing the WWII memorial with barricades on the national mall.

The worst in a string of many abuses of process by Democrats occurred last year when the “nuclear option” suddenly became the left’s cri de coeur. Upset over the president’s cascading failures and in a panic over the looming fortunes of both Obamacare and their upper chamber majority, Senate Democrats concluded that their best course was to nuke the filibuster for judicial nominees in order to pack the D.C. Circuit Court, a move that proved prescient when the Halbig ruling was granted an en banc hearing with the full appeals court, including the hastily confirmed additional Democratic appointees. Despite warnings about setting dangerous precedents from some principled liberals, most progressives supported invoking the nuclear option, and with fervor. Whatever future headaches would emerge as a result of the radical maneuver were worth the short term satisfaction of inserting partisan judges on the D.C. Circuit. The ends justify the means. 

Republicans threatened but never actually went through with nuclear option in 2005. Every prominent Democratic senator that year (Harry Reid, Joe Biden, Barack Obama, Hillary Clinton, Dick Durbin, Chuck Schumer) took to the floor to rail against the unprecedented assault on the most precious feature of our republic: the protection of minority interests.

That argument carried the day and Republicans backed off the threat.

Would that things have played out the same way last year, but alas. Reid went through with it and changed the Senate for the worse, perhaps irrevocably. McConnell should restore the 60 vote filibuster for nominees when Republicans win the Senate, even though the precedent set by Reid opening Pandora’s Box says that Republicans could use it to their advantage. I hope they don’t. Because if we don’t put the genie back in the bottle, very soon we will have legislation passing in the Senate on bare majorities, making the upper chamber unmistakable from the lower one, giving us true democracy (aka “mob rule”) which is not the system we’re supposed to have. It is the preferred system of progressives, because they imagine it is their destiny to be the permanent majority and need not worry about quaint notions like minority protections. But in such a system, 51% of the population can always dictate how the other 49% lives, and rights transform from being innate, inherent and inviolable to being merely transient and defined by the majority.

In a republic with a healthy respect for minority concerns, no majority can vote away the 1st amendment (though Reid and the Democrats even tried to do that this year!) on a whim. The Reid Senate legacy has put that at risk.

A return to regular order, appropriations bills passed out of committees, and a free and open invitation for all to introduce amendments and allow for transparent dialogue and voting on policy will signal to the American people that the “world’s greatest deliberative body” is working to restore its reputation. By returning to process, the important debates over ideas may reconvene.

A Republican Senate will seem a veritable fount of creativity and ideas compared to that which we have suffered through since 2006. Pick your issue, Republican Senators will have an idea; from healthcare to tax reform, energy to deregulation, the upper chamber will be a cacophony of conservative arguments and proposals, and it will be interesting to see progressive reaction to it all. Already, in anticipation of being routed, leftists like Michael Tomasky are crying crocodile tears and asking “How Can Dems Be Losing to These Idiots?” As he tells it, it’s not Reid and the Democrats who have forsaken ideas for a trivial and pathetic process approach designed to conceal their true motives, but Republicans who can’t muster anything new:

“I mean it is truly admirable, in its perverse way, how anti-idea this party is. It has no economic plans. Did you see this Times article last week called “Economists See Limited Gains in G.O.P. Plan”? I trust that you understand the world of newspaper euphemism enough to know that “limited gains” basically means “jack shit.” It’s all tax cuts and fracking and the wildly overhyped (in jobs terms (PDF)) Keystone pipeline.

Republicans know the truth about these proposals deep down, or I think most do (I suppose some actually are that dumb). But they keep peddling them like a costermonger selling rotten fruit. Why? At least in part because they also know deep down that things like an infrastructure bank are what will really create jobs. I mean, it’s the very definition of creating jobs. But they can’t be for that, because it would be a vote for Obama, and Party Chairman Limbaugh would call them mean names.”

I encourage Tomasky to look up the word “projection.” Progressives of his ilk are so contemptuous of “the other team” that they are incapable of self-analysis. The mind-numbing banality of his assertion that an infrastructure bank is necessary to create jobs is of a piece with Hillary Clinton’s recent rhetorical majesty, where she claimed almost matter-of-factly that “corporations and businesses don’t create jobs.” Progressive principles, such as they are, exist as reactions to actual grounded principle on the right. And it’s the left’s allergy to capitalism that leads it to make such asinine statements as “you didn’t build that” and “you built a factory out there – good for you. But I want to be clear. You moved your goods to market on roads the rest of us paid for,” which in turn explains progressive insistence that the right lacks an economic agenda: when you’re utterly incompetent and ignorant of economics and how the market works, it makes sense that you’d view deregulatory and free market-informed proposals with suspicion and confusion. And that’s how you get Michael Tomasky calling the GOP an “anti-idea party.”

We desperately need an honest conversation about ideas, but just as Warren Harding promised a “return to normalcy” after the disastrous Wilson presidency, Republicans need to promise a return to proper process following the apocalyptic fail of the Reid Senate, which will allow the more pressing arguments over ideas to commence again.

Rand Paul’s Filibuster

One year ago today, Rand Paul captivated much of the country with his filibuster of John Brennan’s nomination to the CIA. The 13 hour marathon went spectacularly viral on social media and was responsible for CSPAN’s largest ratings in a while. By now very few Americans are unfamiliar with the Kentucky senator’s passionate rebuke of our clandestine drone program, and that is due to Paul’s political instinct for latching on to broad populist concerns that generally transcend partisan lines. Whether it’s reforming mandatory minimum sentencing, advocating government (state and federal) exit from marriage contracts, suing the NSA for domestic spying or championing drug war reform and felon voting rights, Paul has shown he is virtually peerless at applying his libertarian message to issues that garner broad support and thus enhance the appeal of libertarian ideas overall. Still, for all his policy entrepreneurship in just three years in the Senate, Paul is known most for his stance on drones.

As much as the filibuster was about drones, it was also about much more. It was about the wider War on Terror, as well as a plea for a restored reverence for the Bill of Rights, especially the fifth amendment. Most of all though, the filibuster was a disquisition on checks and balances and constitutional separation of powers. Rand used the hypothetical threat of an American being killed via drone strike on American soil without due process as a vivid entry point through which his audience could begin to appreciate the distorted power distribution within the branches of government.

Since Woodrow Wilson progressives have believed that government power should be concentrated in the executive branch and that the presidency demanded a “vision.” George Will describes the Wilsonian impulse as a desire for the president to interpret the constitution in a way that comports with the wishes and wants of the people and to be the voice that affirms these wants. Wilson’s view of the American founding and of separation of powers would become the legacy sentiment of the American left for a hundred years: not good enough. For Wilson and his ascendant progressive cohort, science was becoming the dominant and indisputable truth; bolstered by Darwin’s theory of evolution in biology, they set out to apply the science of evolution to human behavior. Wilson believed that government’s purpose was to efficiently guide humanity towards its inevitable endpoint of societal evolution. The perfect society would be attainable once the experts were put in charge. You know, top men

F.A. Hayek famously disparaged this inclination to impose scientific plans on a society the fatal conceit. The idea that you can acquire enough knowledge to plan an economy through the expertise of administrators is essentially the definition of hubris. That you would attempt such a project in a polity expressly founded in opposition to this conceit is nigh treasonous. And yet there was Woodrow Wilson, the first American president to directly challenge the very nature of our government’s structure and the idea that power should be diffuse and majorities neutered. Our Madisonian construct is meant to consist of constantly shifting majorities among competing segments of government, while factions are to be constrained by being discouraged on large scales, the idea being that the inevitable rise of small factions within civil society would harness productive resolutions among competing interests. Wilson and the progressives declared all this nonsense, said “Hail Science!” and went to work on a century long project to gradually erode checks and balances by growing the executive to a scale fit to house a legion of expert administrators, aka “unelected bureaucrats.”

This was the subversive message of Rand Paul’s filibuster. The crucial issue he really meant to highlight was embedded inside his bombastic portrayal of an immediate threat to our natural rights posed by drones. That is not to say that Paul was not sincere about his clarion call for reform to both overseas and domestic drone protocols. Rand is nothing if not a rabid defender of all of the Bill of Rights, and his alarm at the vague guidelines, oversight and legality of the government’s drone program was about protecting various parts of our fourth, fifth and sixth amendment rights. More than anything to do with drones though, the crux of the filibuster was about drawing attention to the bipartisan abuse of executive power.

Paul is fond of quoting Montesquieu (really, who isn’t?), the French political philosopher whose principal contribution to politics was the idea of separation of powers. A merger between executive and legislative branches would mean no liberty, according to Montesquieu’s revolutionary tripartite concept under which our government was conceived. Likewise, as Paul offered repeatedly throughout his filibuster, a combination of the executive and the judiciary can yield no justice. Paul was rightly tying the concern over due process and extrajudicial assassinations to the broader discussion of an overreaching executive. The presidency has simply become too big, with too many agencies and bureaucracies under its aegis. Congress has gradually and steadily forfeited much of its authority to the executive on everything from war powers to educational administration (as if that should be a role of the federal government at all). I believe Rand Paul was sincere when he said he would have stood and raised the same objections regardless of who was occupying the White House. This was not a partisan attack on Barack Obama, but a larger critique of the subtle degradation to our constitutional prerogative to live under three coequal branches of government.

Before Wilson, Congress had far more authority than it enjoys today and the roles of the branches were unambiguous: the legislature writes the laws, the executive branch executes the laws, and the judicial branch determines the constitutionality of the laws. But with the rise of our imperial presidency – brought to you unapologetically and enthusiastically by progressives and their presidential “visionaries” – the executive branch has become Leviathan, buttressed by unaccountable battalions of expertise known as executive agencies, able to cast the tentacled nets of the administrative state across the land, unimpeded and with little input from the other branches. Our government as currently construed is not very far from completing the progressive vision of having a benign dictator administer an expert plan for the country. As the executive branch grows and grows, and with it the number of petty authoritarians manning the cubicles at EPA, IRS, DOE, HHS, and wherever else the executive agencies have usurped power, the ability of Congress and the Supreme Court to effectively check its authority diminishes. We know who is responsible for this. Paul’s meta-narrative was not to affix blame for the bloated, corrupt, too-powerful presidency, but to cast a bright shining light on it and to spend thirteen hours subtly lamenting the fact that not enough Americans in the 21st century seem to care that government today is not functioning as it was designed.

And what better way to jar Americans out of complacency than to warn them that an unchecked executive might drop a drone through their roof. That was the real point of the filibuster, to wake Americans up to the perils of absolute power.

Obstruction: I Do Not Think It Means What You Think It Means

I am so sick of hearing Harry Reid and the progressives bitch and moan about “obstruction” by Senate Republicans. It’s almost as if the Democrats are so embarrassed by their own lie that they don’t have the passion to propagate it any longer. And for all intents and purposes, they don’t have to keep up the slanderous distortion, because they’ve gone nuclear already and used “obstruction” as the impetus for doing so.

Republicans have not engaged in obstruction and Republicans have not abused the filibuster.

Republicans did not start the practice of filibustering judicial and executive nominees; Democrats started it in the early aughts after an infamous retreat in 2001 whereupon Democrats resolved to thwart the Republican agenda by being as intransigent and (dare I say it?) obstructionist as possible. They invented out of whole cloth the practice of delaying judicial nominees (see: Miguel Estrada) and they argued (correctly) in 2005 that the nuclear option would be “the end of the Senate” (Reid) and “prayed” that when they regained the majority they would not be so callous as to invoke the nuclear option (Biden). Hypocrisy barely scratches the surface of the chutzpa and hubris exhibited by Reid and the progressive amen chorus in Democratic and media circles. Profound duplicitous malice is probably a more apt description of Democratic conduct.

It’s been amusing to listen to Republican after Republican take to the Senate floor in the wake of the nuclear option and castigate Democrats for their short-sighted strategy and overall neglect for Senate rules or tradition. Old lions of the chamber like Lamar Alexander and Orrin Hatch have channeled their younger colleagues’ zeal and turned the vitriol to eleven. What has Republicans so pissed off is that the so-called “crisis” that was used as an excuse to blow up Senate rules with a bare majority when a supermajority has always been required is entirely manufactured. It is a complete fabrication to accuse Republicans of deploying “unprecedented” (Reid’s term) levels of obstruction or delaying of nominees. During the Bush presidency, five judicial nominees were blocked or delayed until their nominations were withdrawn or defeated. The total number of judicial nominees blocked during the Obama administration to date? Also five. Last I checked, an equal number of blocked nominees as a result of parliamentary shenanigans by both parties hardly amounts to lopsided misconduct by either party. Concerning the length of delays of nominees held up for further inquiry, Reid and his minions claim that here Republican behavior has been just as dastardly, as they have forced many of Obama’s nominees to wait in limbo for exorbitant lengths of time. But any glance at the data shows that this too is a canard. Again, prior to 2000 no president had ever seen his judicial or executive nominees blocked in the Senate. After Bush won his first election, Democrats fretted over the DC Circuit Court of appeals and were so paranoid that Bush was going to stack the court with conservative jurists that they deigned to subject each nominee to interminable delays and blocks. Furthermore, Democrats used the identical argument when they were in the minority as Republicans are now making: that the DC Circuit is under-worked and in no need of additional judges when there are appeals courts throughout the country who do need judicial appointments. Both parties made this exact same argument when confronted with a bullying majority looking to break the rules of the Senate; the difference is that Republicans walked back from the ledge in 2005 while Democrats in 2013 did not.

Why are Democrats so concerned with packing the DC Circuit when there are other courts in the country in need of judges? Two reasons: the DC Circuit is the principle arbiter of our regulatory regime and is also the prime vehicle through which judges ascend to the Supreme Court. Having suffered through a year that Dante would anoint as its own circle of Hell, progressives have become desperate and have adopted a bunker mentality in the face of Obamacare’s epic political maelstrom. Rather than wake up to reality and look for a sensible way out, they have dug in their heels and insisted that Obamacare is fine and there is nothing to see here. Their actions in the Senate however, betray the true aim of implementing the progressive agenda via a legislative end-around. Since the inception of Obamacare caused them to lose the House for what looks to be a long while, progressives have trained their focus on the the judiciary and the executive. The administration will continue to rule by fiat and through its Brobdingnagian bureaucracy will blanket the land with byzantine rules and restrictions. The populace will howl, but the lawsuits will be mere trifles as they die in the DC Circuit and Regulation Nation is allowed to proceed apace.

None of the reasons given for Harry Reid’s reckless decision to pull the nuclear trigger are valid. The sole, cynical reason for nuking the Senate and turning it into a rowdy incarnation of the majoritarian House of Representatives was frustration. The left has been through the ringer in 2013 with a litany of scandals, the surveillance state exposed, an embarrassing and indecisive foreign policy and, of course, the piece de la resistance, Obamacare. Frustration at their own failures combined with a petulant impatience over nominees is the only reason they blew up the filibuster. They couldn’t get their way, so they threw a fit and wrecked the world’s most deliberative body for no apparent reason in the process. Good job guys.