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Sunday, April 7, 2013

The RULES Have Changed

In my earlier days, I learned that representatives in Congress not only had to represent their constituents, they also had to, at times, step up and lead their constituents to a higher plane; to a new understanding of issues or difficulties facing the nation.  They might, in such circumstances, even be required to vote contrary to their constituents= wishes and understanding.  Such a stance required wisdom, integrity, courage, fortitude, and some degree of bravado, we were told.

But now?  Apparently the stance is quite different.  The prevailing attitude seems to be that one must vote first according to the wishes of one’s political base (and that doesn’t necessarily encompass the majority of one’s constituents).  At the same time, the Senator or Representative must be making his stance very clear to those who constitute his economic base.  This can consist of individual donors, corporate donors,  association (group) donors, and, of course, the ever-present PACs and Super-PACs.  In the main, they are all “special interests” aiming at something that they want for their own constituency -- clients, customers, boards of directors, or stock holders.  Their interests are not necessarily those of the office holder’s constituents, although at certain points they may intersect. In meeting all of these interests, the office-holders are most likely focused on re-election, and further, on lucrative future positions with a corporation, association or lobbying firm that presently takes more than passing interest (more like an investment or proprietary interest) in the office-holder. 

Out of this set of circumstances and attitudes, one is unlikely to be able to find very many politicians willing to sacrifice their office or their economic security for a principle or a cause or a tenet that they can put on a plane above the realities of their circumstances.  It is probable that there are very few, if any, politicians left who even believe that there are times when one should vote contrary to the “interests” just described in order to lead constituents to a new understanding of an issue.

Another thing I thought I learned back then was that a simple majority was the way to decide issues by a vote.  It was almost a certainty.  You could even count on it coming up amongst young people on a team, or on a playground, when a team decision was needed.  “Majority wins” was a norm that few ever challenged.  As we got older, we heard more about Roberts Rules of Order which verified the importance of a majority vote on most issues (although there was equal clarity on the issues that required a two-thirds vote). 

But then, along came the “cloture” vote, and everything changed.  While the filibuster has been a staple of the Senate since the mid-19th century (allowing senators an opportunity to extend debate and block a vote on a particular piece of legislation), the rule on cloture did not arrive until 1917 when  senators adopted a rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture.”

According to a history on, the new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Over the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation...until cloture was invoked after a 60 day filibuster against the Civil Rights Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the current one hundred senators.

The filibuster has become an increasingly common tool: the 19th century saw fewer than two dozen filibusters enacted. By the Carter Administration, that figure was up to 20 per year.  From 1975 to the present, the cloture rule has been employed sparingly but since 2007, Democrats have been forced to try to break Republican filibusters 360 times -- by far the highest rate in Congressional history.

So now, the common practice of the radical Republican minority is the use of the filibuster and cloture vote (60 votes required) to block legislation which might have passed by a simple majority vote.  It is a device that goes to the heart of our democracy.  Majority no longer rules the day.  But worse, the very function of the Senate as a body meant to deliberate carefully and then to vote on legislation, has taken a back seat to using a rule to keep legislation from being passed, or even to be voted upon.  We have here a rule of the Senate that destroys a norm or standard of action for the rest of our society.  It destroys consensus; it destroys true deliberation and debate (because the outcome of requiring 60 votes is more important than the actual filibustering).  This is a Congress that has rendered its main objective -- deliberating and legislating -- to a mere exercise in futility.

Gregory Koger, associate professor of political science at Miami University, has placed the rules in their present context and approbation:
“While members of the U.S. Senate have always had the ability to filibuster legislation—that is, to delay it through open-ended “discussion”—they rarely did so before 1960. Filibustering has skyrocketed since then, from an annual average of 3.2 filibusters during 1951– 1960 to 16.5 between 1981 and 2004. But this statistic only tells half the story: obstruction is so institutionalized in the modern Senate that labeling some action a “filibuster” is like handing out speeding tickets at the Indy 500. As a Senate leadership aide explained: “Obstructionism is woven into the fabric of things. The [party] leadership deals with it on a day-to-day, even a minute-to-minute basis. . . . You can’t underestimate the importance of it. There are offshoots of obstructionism every day.”
Filibustering—and the sixty votes required to limit debate using the Senate cloture rule—is so institutionalized into the way the Senate sets the agenda, writes legislation, and considers nominations that scholars label it the “sixty-vote Senate” and treat the filibuster as a veto point on par with the presidential veto.  This change has had far-reaching effects: filibustering empowers individual senators to pursue their personal agendas, and it gives the minority party the ability to block the majority party’s proposals.” 

What a shame!  Let us take just a moment to indicate some of the legislation that might have passed if a simple majority vote had ruled the day:

“Republicans derailed energy and climate legislation, halted the DREAM Act, which passed the House while receiving 55 votes in the Senate, and blocked any debate on the Employee Free Choice Act, which passed the House with an overwhelming majority and garnered 59 supporters in the Senate. Most recently, in July, the DISCLOSE Act – which would have increased transparency over independent groups’ campaign spending – failed to overcome a Republican filibuster and died, despite receiving support from 51 Senators and past support from many current Republican opponents. Also in July, Senate Republicans blocked the Bring Jobs Home Act , which would have encouraged in-sourcing by providing tax incentives to companies that bring jobs back to the United States from overseas. Separately from blocking substantive legislation, Republicans have used Senate rules to gum up even the most basic levers of governance,” such as approval of appointments in both the Executive and the Judiciary.

The use of this tactic did not start in President Obama’s second term, but was utilized extensively in his first term.  In 2008, much of the legislation proposed by the new administration was gunned down by Senate Republicans using the filibuster and cloture rules.  Ranging from environmental reforms and investment in economy to savings in Medicare and increased rights for consumers, especially jobs and stimulus bills, much of the first term legislation failed because of these rules being invoked.  In perspective, this means that the volume of legislation passed in the first term was all the more remarkable.

In December of 2012, the organization Common Cause brought suit against the Senate for its misuse of the filibuster and cloture rule.  Unfortunately, the District Court of Washington DC found that the Plaintiff did not have the required standing to bring such a suit, but there are some remarkable facts contained in the Decision.
“The number of actual or threatened filibusters has increased dramatically since 1970, and now dominates the business of the Senate.  In 2009, there were a record sixty-seven filibusters in the first half of the 111th Congress -- double the number of filibusters that occurred in the entire twenty-year period between 1950 and 1969. By the time the 111th Congress adjourned in December 2010, the number of filibusters had swelled to 137 for the entire two-year term of the 111th Congress.  During the 111th Congress, over four hundred bills that had been passed by the House of Representatives -- many with broad bipartisan support -- died in the Senate without ever having been debated or voted on because of the inability to obtain the sixty votes required by Rule XXII.” 

The wording of part of the complaint is also remarkable:

“Plaintiffs allege that the Cloture Rule “replaces majority rule with rule by the minority by requiring the affirmative votes of 60 senators on a motion for cloture before the Senate is allowed to even debate or vote on” measures before it.  According to Plaintiffs, “[b]oth political parties have used Rule XXII when they were in the minority in the Senate to prevent legislation and appointments proposed by the opposing party from being debated or voted on by the Senate.” Plaintiffs further assert that Rule XXII has primarily been used “not to protect the right of the minority to debate the merits of a bill or the fitness of a presidential nominee on the floor of the Senate . . . , but to suppress and prevent the majority from debating the merits of bills or presidential appointments opposed by the minority.” (emphasis in original).  “Actual or threatened filibusters (or objections to the commencement of debate which are the functional equivalent of a filibuster) have become so common that it is now virtually impossible as a practical matter for the majority in the Senate to pass a significant piece of legislation or to confirm many presidential nominees without the 60 votes required to invoke cloture under Rule XXII.” Plaintiffs allege that because invoking cloture is “time consuming and cumbersome,” the mere threat of a filibuster is sufficient to forestall consideration of a measure.  Furthermore, because Senate Rule V provides that Senate rules continue from one Congress to the next, and because invoking cloture to close debate on any resolution to amend Senate rules requires the affirmative vote of two-thirds of Senators present and voting, Plaintiffs assert that “the combination of Rule V and Rule XXII has made it virtually impossible for the majority in the Senate to amend the rules of the Senate to prevent the minority in the Senate from obstructing the business of the Senate by filibustering.” 
Another thing we learned when I was young was that everyone should play fair.  It included every day life, business, and mostly sports.  And, if you didn’t play fair, there were usually some consequences you had to bear, like ridicule from others on your team, or from the other team; like a punishment that usually involved grounding or some such penalty; like a fine or imprisonment if this got played-out on a broader stage.  One could almost count on people and businesses playing fair.  It was the mark of a good person and a trustworthy business.

I have long remembered one time when my father was upset by a business practice that his long-time car dealer undertook during a fund-raiser in the downtown area of my hometown.  It was an auction of used cars, and my Dad bid on one for me based on the dealer’s reputation and his long-standing relationship with that dealer.  The car turned out to be a dud, and my father was so hopping mad that he went to the dealer and demanded his money back.  He got it, too, because reputation and fairness meant a lot in those days!  So did recrimination in the form of some legal proceeding.  I remember instances of business people caught cheating and being fined or punished for their transgressions.  “Serves them right”, many would say.

Now, we find another world almost.  And right there, lies the deeper problem:  our cultural norms have changed.  It appears that Fairness is no longer an honored standard for behavior in many quarters.  The norm is more along the lines of “what can we get away with?”  When a voracious greed drives our enterprises, we cannot expect that fairness will often dictate behavior.  It is a sad commentary on how much our culture has changed, but there are pockets of hope.

According to Robert Kinkead on, a 2008 workplace study found that fairness in the workplace offered 2 concrete benefits to the employer:

1. Employees who felt they worked in a fair workplace were more likely to engage in behavior that benefited others at work, such as helping a co-worker finish a project on time.
2. Employees who felt they worked in a fair workplace were more likely to engage in behavior that benefited the organization as a whole, such as staying late to finish a report on time.

Marshall Goldsmith, MBA, PhD, a world authority on helping successful leaders achieve positive, lasting behavioral change, reports on, a truly beguiling thought:

“At a time when shredding documents, creative accounting and ruthless tactics come to light in the media on a fairly regular basis, it's no surprise that the young leaders of today have spotted the need for leaders to demonstrate integrity and ethical behavior. As a matter of fact, young leaders of today believe that demonstrating integrity will become the most important characteristic of future leaders.”  It has been said that many women executives in corporations, for example, are better leaders because they are more readily attune to these characteristics.  Perhaps another reason to put many more women into leadership roles on the political front!

We can only hope that some concepts as “old-fashioned” and normative as individual integrity, fairness and just plain caring are again becoming important characteristics for our future leaders.