“Obstructing The Democratic Process”: Gun Control Filibuster Proves The Senate Is Broken
I’ve been shaking my Boggle box to come up with some colorful adjectives to add to the din of words criticizing the Senate for its failure pass the universal background check amendment in the Safe Communities, Safe Schools Act of 2013.
I didn’t get any words as good as egregious or atrocious. Boggle’s 16 cube tray didn’t give me enough letters to produce words as bumptious as those. But I did get the word Fed, and that reminded me of James Madison’s Federalist 10, a paper he wrote in 1787 to argue that “one of the numerous advantages promised by a well-constructed Union is its tendency to break and control the violence of factions.”
Madison defined factions as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse …adverse to the rights of other citizens or to the permanent and aggregate interests of the community.” He argued that majority rule would “secure the public good from the danger of factions and preserve the spirit and the form of popular government.”
Sadly, the outcome of this vote is just another example how the filibuster has eroded any and all ability of the Senate to secure the public good. The 46 Senators who voted against cloture put their self-interest ahead of public safety, regardless of the fact that the bill closed all the loopholes in the background check process, a process that today lets 40 percent of guns purchased go unchecked.
The filibuster came into being in 1815. Between 1815 and 1975, Senators were required to stand in the chamber and speak until a 2/3′s vote invoked cloture. It was exercised infrequently because the costs of using it were higher. Two-thirds of Senators had to be present and voting in the chamber, and 3/5′s sworn. In short, they had to sit and listen to the speech until they fell asleep, wore out, or simply couldn’t take it anymore.
In 1975, the Democratic controlled senate strengthened the filibuster. Senators didn’t have to be present to use it or engage in endless debate in the chamber. To invoke cloture, the number of required votes was reduced to 3/5s, or 60 out of 100.
Why did Democrats make these changes? They wanted to make sure that if they lost control of the chamber in some future election, they’d have a reliable way to way to block the Republican party.
The Democrats made a bad move. Since 1975, both parties have abused the filibuster to such an extent that today the Senate shows little productivity, and it’s a rare occurrence that bills do pass. Under majority rule, S.649 passed 54-46, but that doesn’t count because every bill now requires a 60-vote supermajority to pass, a requirement that flies in the face of majority rule.
Just the threat of a filibuster stops legislation in its tracks, and special interests work this to their advantage. The gun lobby compelled those 46 Senators to filibuster the bill by threatening to pull support from their 2014 reelection campaigns.
However, it’s not just the gun lobby influencing senators to filibuster bills. Over the past several years, many powerful liberal and conservative interest groups have helped orchestrate filibusters of multiple good and broadly beneficial legislative proposals.
The filibuster slaps popular government in the face. It has to go. It does nothing but obstruct the democratic process, and it isn’t needed to give the minority party a stronger voice in the chamber. Even if we got rid of it, each Senator still has plenty of rules and procedures at his or her disposal to slow debate.
How we get rid of it, however, is a discussion I’ll reserve for a future column, because we can’t expect the very people who benefit from the filibuster to support eliminating it. One thing’s for sure: If the status quo persists, we won’t see any reasonable gun control laws in this geological age.
By: Jamie Chandler, U. S. News and World Report, April 19, 2013
“The Tyranny Of Small States”: Did Our Founders’ Lack Of Foresight Doom Gun Control?
When the Senate takes up the bill to expand background checks for gun purchases this week, we will hear plenty rationalizations for opposing it similar to the one offered recently by Heidi Heitkamp, the newly elected Democrat from North Dakota: “In our part of the country, [gun control] isn’t an issue. This is a way of life. This is how people feel, and it is extraordinarily difficult to explain that, especially to grieving parents.” Heitkamp’s bottom line: “I’m going to represent my state.”
That state has a population that did not crack 700,000 as of last year. In other words, that state is smaller than cities like Columbus, Fort Worth and Charlotte, and is only slightly larger than El Paso, Memphis and Nashville. North Dakota is separate from South Dakota only because Republicans who dominated the Constitutional Convention in 1889 thought it better to carve two Republican-leaning states out of Dakota Territory (railroad politics also played a role). And yet, North Dakota will have as much say this week as California, Texas, New York and Florida—how those 699,000 people “feel” in towns like Minot and Williston and Fargo will matter as much as how 38 million people “feel” in towns like Los Angeles and San Francisco and San Jose. Small, rural states will not only make it much harder to expand background checks to the huge gun shows where a big share of firearms are purchased, they may succeed in passing an amendment that would allow states with lax regulations for concealed-carry to trump stricter rules elsewhere—that is, to allow someone who got a concealed-carry permit in Wyoming (population 576,000, smaller than Portland, Oregon) to carry a concealed weapon in New York, where it’s much tougher to get a permit.
The undemocratic nature of the upper chamber of our legislative branch of government has been noted many times—it is, as the New York Times observed in an in-depth piece just a few months ago, “in contention for the least democratic legislative chamber” in the world, with the 38 million people who live in the 22 smallest states represented by 44 senators, while 38 million Californians are represented by two. But it is worth dwelling on this feature of our government again this week, because there are few issues where it makes itself felt as strongly as on guns. Max Baucus, the Montana Democrat, helped carry Obamacare to passage, but here he is on the background check bill: “I don’t support the bill, but I support open debate. Montanans are opposed to this bill—by a very large margin.” Montana’s population? Just over a million—a veritable giant by contrast with North Dakota, but also quite a bit smaller than Dallas, San Antonio and San Diego. And here’s Mark Begich shortly before he became one of two Democrats, along with Arkansas’ Mark Pryor, to decline to even allow the expanded background-check bill to come up for debate: In Alaska, he said, “We love our guns.” That’s nice! In Columbus, which has more people than Alaska’s 731,000, they love their Buckeyes, but that doesn’t mean they get to set national policy around them.
Bring this up, and the guardians of the wide-open spaces throw the Constitution in your face. But it’s worth recalling just how haphazardly this feature of our government came about, that it was not handed down from the mountaintop by James Madison. In fact, Madison, the father of the Constitution, vehemently opposed this design for the Senate when it was being debated at the Constitutional Convention. As a representative of one of the big states, Virginia, he was in favor of—gasp—apportioning votes in both legislative chambers by population. This fact is often lost on the small-state defenders, as I learned in the onslaught I received when I brought this matter up in 2009: They assume that because Madison supported one of the Senate’s initial undemocratic features—having its members selected indirectly, by state legislatures, in order to keep the Senate at a remove from the tempestuous masses—he must have supported undemocratic apportionment. He did not. He drafted the “Virginia Plan,” which called for two chambers, with members allotted by state population. Countering this was the “New Jersey Plan,” which called for only a single chamber with equal representation for each state (remember, this was pre-Short Hills Mall, and New Jersey was at the time a relatively small state.)
The solution, as any good civics student knows, was the Connecticut Compromise, which, as proposed by Connecticut’s delegates to the convention, created two chambers, the lower one apportioned by population, the upper one not. It was also hailed as the “Great Compromise,” which in hindsight makes it look like the first shining example of our political culture’s tendency to hail as achievements any deal that represents a middle point, no matter how shoddy its logic or deleterious its consequences. It’s also awfully ironic that it should be the Connecticut Compromise that may well keep the Senate from responding seriously to the worst act of mass violence ever perpetrated in Connecticut.
What to do? When, some time ago, I put this whole issue to Kent Conrad, the North Dakota Democrat whose retirement led to Heitkamp’s ascension, he was taken aback: “This was the grand bargain that was struck when the Founding Fathers determined the structure and form of the United States Congress… Are you proposing changing the Constitution?”
Maybe I am. At the time of the not-so-Great Compromise, the largest state, Virginia, was 11 times bigger than the smallest, Delaware. The ratio between California and Wyoming is now 66 to 1, yet they have the same sway in the Senate. Could the Founders have envisioned that? And are we OK with that? If so, just don’t be surprised if the gun bill is blocked or seriously weakened this week despite polls showing overwhelming support for expanded background checks. Undemocratic institutions produce undemocratic results. Mr. Madison could tell you that.
By: Alec MacGillis, The New Republic, April 16, 2013
Saul Alinsky: A True American Exceptionalist
Newt Gingrich has adopted the late organizer as a punching bag, but he and Alinsky share a view of America and reverence for the Founding Fathers.
In his victory speech the night of the South Carolina primary, Newt Gingrich declared:
The centerpiece of this campaign, I believe, is American exceptionalism versus the radicalism of Saul Alinsky…. What we are going to argue is that American exceptionalism, the American Declaration of Independence, the American Constitution, the American Federalist papers, the Founding Fathers of America are the source from which we draw our understanding of America. [President Obama] draws his from Saul Alinsky, radical left-wingers, and people who don’t like the classical America.”
Gingrich’s statement raises two questions. One, what is the “classical America” of the founding fathers, and two, who is Saul Alinsky?
As an historian, Gingrich should know better than to confuse compromise with consensus. There was little all-encompassing agreement among the Founding Fathers. Does Gingrich mean to stake his campaign on Alexander Hamilton’s proposal of a life term for the president? James Madison’s idea that the federal legislature should be able to veto state laws? Would he have preferred Benjamin Harrison‘s proposal that slaves should be counted as half a person for purposes of representation, or is he satisfied with the three-fifths compromise? Enough.
As to Saul Alinsky, the Chicago organizer who died when Barack Obama was a 10-year old boy in Hawaii, it is hard to figure out why Gingrich is so fixated on a man whose most notable achievement was organizing Chicago’s Back of the Yards neighborhood in the 1930s to combat inhumane working conditions. You would think from Gingrich’s allusions that Alinsky must have been a Marxist, maybe even a Communist. His biographer Sanford Horwitt is clear: Alinsky was neither. Or you can just read Alinsky himself — has Gingrich? — who wrote in his 1971 Rules for Radicals: A Pragmatic Primer for Realistic Radicals, “To protect the free, open, questing, and creative mind of man, as well as to allow for change, no ideology should be more specific than that of America’s founding fathers: ‘For the general welfare.’”
Indeed, one of the most striking things about Rules for Radicals is how engaged Alinsky is with the very people that Gingrich positions as his opposites. Alinsky opens his book with a quotation from Thomas Paine, and draws his examples, approvingly, from the lives of John Adams, Alexander Hamilton, Francis Marion, Samuel Adams, Thomas Jefferson, George Washington, and the Federalist Papers.
Here’s a pop quiz. Below are four quotations. One is from Saul Alinsky, one from Newt Gingrich, one from Thomas Jefferson, and one from Thomas Paine. See if you can figure out which is which:
- “Let them call me rebel, and welcome, I feel no concern from it; but I should suffer the misery of devils, were I to make a whore of my soul.”
- “[The] eternal search for those values of equality, justice, freedom, peace, a deep concern for the preciousness of human life, and all those rights and values propounded by Judeo-Christianity and the democratic political tradition…. This is my credo for which I live and, if need be, die.”
- “I am trying to effect a change so large that the people who would be hurt by the change…have a natural reaction…. I think because I’m so systematically purposeful about changing our world. [I am] much more intense, much more persistent, much more willing to take risks to get it done.”
- “I hope we shall crush… the aristocracy of our monied corporations which dare… to challenge our government to a trail of strength, and bid defiance to the laws of our country.”
It’s easy to cherry-pick quotations to serve your rhetorical point, but I am confident these lines represent the views of their authors: Paine, Alinsky, Gingrich, and Jefferson, respectively. Alinsky believed that people whose interests are not respected by government, who are maligned or discriminated against or taken advantage of, should organize to advocate for their interests. He fought against racism and for better working conditions. His politics were unequivocally left-wing, but he believed forcefully in democracy as “the best means toward achieving” the values he professed. And he believed democracy came with personal responsibility. Alinsky sounds downright Gingrichian when he criticizes “people who profess the democratic faith but yearn for the dark security of dependency where they can be spared the burden of decisions.” For those people, “the fault lies not in the system but in themselves.”
So why is Gingrich so fixated on Alinsky? Maybe Gingrich is playing a game familiar to all graduate students: throw out a name you’re pretty confident few others have heard of in order to make yourself sound smart. If the name happens to sound Jewish and European, and therefore might raise the specter of a politics Alinsky himself wanted no part of, all the better. Gingrich has invented a straw man, an imagined un-American, and set him up against an imagined “classical” American past. None of that helps our political debate. As I have suggested elsewhere, bad history is worse than no history at all.
There may be reasons to criticize the real Saul Alinsky, but he belongs on the roll call of those who worked for, not against, a better America. Gingrich proclaims “American exceptionalism.” If the flawed, contentious Founding Fathers agreed on anything, it was that power does not come by divine right but rather from self-government. What better way, then, is there to show your fidelity to that spirit than to work, as Alinsky did, to “form a more perfect union”?
By: Andy Horowitz, The Atlantic, January 27, 2012
The Fake James Madison: Conservatives Selective Reading Of The Founding Fathers Threatens Social Security And Medicare
The House Republican plan to phase out Medicare is crashing and burning. Rep.-elect Kathy Hochul (D-NY) just won an impossible election victory by campaigning to keep Medicare alive. The Senate just soundly rejected the House GOP’s plan. Even former Speaker of the House Newt Gingrich, who once shut down the government in a failed attempt to force President Bill Clinton to support draconian Medicare cuts, blasted this Medicare-killing plan as “radical right-wing social engineering.”
Yet even as this concerted assault on Medicare hemorrhages support from elected officials, conservatives have a backdoor plan to get the courts to kill Medicare for them. Numerous lawmakers embrace a discredited theory of the Constitution that would not only end Medicare outright but also cause countless other cherished programs to be declared unconstitutional. Under this theory, Pell Grants, federal student loans, food stamps, federal disaster relief, Medicaid, income assistance for the poor, and even Social Security must all be eliminated as offensive to the Constitution.
In essence, supporters of this constitutional theory would so completely rewrite America’s social contract that they make Rep. Paul Ryan (R-WI), the author of the House GOP plan, look like Martin Luther King Jr. This issue brief explores the legal and historical gymnastics required to accept the conservative position that programs like Medicare and Social Security violate the Constitution.
The general welfare
Although Congress’s authority is limited to an itemized list of powers contained in the text of the Constitution itself, these powers are quite sweeping. They include the authority to regulate the national economy, build a national postal system, create comprehensive immigration and intellectual property regulation, maintain a military, and raise and spend money.
This last power, the authority to raise and spend money, is among Congress’s broadest powers. Under the Constitution, national leaders are free to spend money in any way they choose so long as they do so to “provide for the common defense and general welfare of the United States.” For this reason, laws such as Medicare and Social Security are obviously constitutional because they both raise and spend money to the benefit of all Americans upon their retirement.
Many members of Congress, however, do not believe the Constitution’s words mean what they say they mean. Consider the words of Sen. Rand Paul (R-KY), who recently explained the origin of the increasingly common belief that Congress’s constitutional spending power is so small that it can be drowned in a bathtub:
If you read [James] Madison, Madison will tell you what he thought of the Welfare Clause. He said, “Yeah, there is a General Welfare Clause, but if we meant that you can do anything, why would we have listed the enumerated powers?” Really, the Welfare Clause is bound by the enumerated powers that we gave the federal government.
In essence, Paul and many of his fellow conservatives believe Congress’s power to collect taxes and “provide for the common defense and general welfare of the United States” really only enables Congress to build post offices or fund wars or take other actions expressly authorized by some other part of the Constitution. According to this view, the spending power is not—as it is almost universally understood —itself an independent enumerated power authorizing Congress to spend money.
Paul’s understanding of the Spending Clause is not simply the idiosyncratic view of an outlier senator. Indeed, there is strong reason to believe his view is shared by the majority of his caucus. In the lead-up to the 2010 midterm elections, congressional Republicans released a “Pledge to America,” which broadly outlined their plans for governing if they were to prevail that November. In it, the lawmakers claimed that “lack of respect for the clear constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year.”
This language suggests that many conservatives agree with Sen. Paul that Congress is somehow exceeding its constitutional authority to spend money. But there is no support for this view in constitutional text or in Supreme Court precedent.
In its very first decision to consider the issue—its 1936 decision in United States v. Butler—the Supreme Court unanimously affirmed that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution,” as Sen. Paul would claim. Similarly, while the text of the Constitution establishes that “the exercise of the spending power must be in pursuit of ‘the general welfare,’” neither Sen. Paul nor the Pledge cites examples of laws that fail to meet this criterion.
Selectively reading Madison
While conservatives’ narrow understanding of the spending power finds no support in the text of the Constitution or in the Supreme Court’s decisions, Sen. Paul is correct that it does have one very famous supporter. In an 1831 missive, former President James Madison claimed that the best way to read the Spending Clause is to ignore its literal meaning and impose an extra-textual limit on Congressional power:
With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.
Sen. Paul suggests that Madison’s extra-textual limit is both authoritative and binding—even if it means that programs ranging from Social Security to Medicare to Pell Grants must all cease to exist. But it is a mistake to assume that Madison’s preferred construction of the Spending Clause must restrict modern-day congressional action.
First of all, even the most prominent supporters of “originalism”—the belief that the Constitution must be read exactly as it was understood at the time it was written—reject the view that an individual framer’s intentions can change constitutional meaning. As the nation’s leading originalist, Supreme Court Justice Antonin Scalia, explains, “I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”
Indeed, Madison himself would have been dismayed by the claim that an established understanding of the Constitution must bend to his own singular views. Like Scalia, Madison rejected the notion that the framers’ personal desires can defeat the words they actually committed to text. As he explained to future President Martin Van Buren, “I am aware that the document must speak for itself, and that that intention cannot be substituted for [the intention derived through] the established rules of interpretation.”
Secondly, Madison embraced a way of interpreting the Constitution reminiscent of the evolving theories of constitutional interpretation that are so widely decried by modern conservatives. Although Rep. Madison opposed on constitutional grounds the creation of the First Bank of the United States in 1791, President Madison signed into law an act creating the Second Bank in 1816. He “recognized that Congress, the President, the Supreme Court, and (most important, by failing to use their amending power) the American people had for two decades accepted” the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”
The Constitution is not a scavenger hunt
Even if we must, as Sen. Paul suggests, be bound by the Founding Fathers’ subjective intentions, Madison’s understanding of the Constitution hardly reflects the consensus view among those who created it. The truth is that Madison’s voice was merely one of many competing voices among the founding generation—and his vision of the Constitution was eventually rejected by no less a figure than George Washington himself.
Madison’s chief antagonist in early debates about constitutional meaning was Alexander Hamilton. As the nation’s first secretary of the treasury, Hamilton offered an interpretation of the Spending Clause that closely resembles the modern understanding:
These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.
Hamilton’s understanding of the spending power was one part of a broader, more expansive vision of congressional power that also included a robust interpretation of Congress’s power under the Constitution’s Necessary and Proper Clause. This broader understanding of Congress’s role prevailed over Madison’s very limited one during the earliest days of the Republic. Hamilton was the chief advocate who convinced President George Washington to sign the First Bank bill over Madison’s objections.
The point here is not that constitutional interpretations should be played like the card game “War,” where conservatives play the Madison card and everyone else plays the Washington card, and whoever plays the higher card wins. Rather, the point is simply that conservatives are wrong to treat the Founding Fathers’ statements as if they were a menu that lawmakers can search through and order the kind of Constitution they want. The Constitution is not a scavenger hunt.
Moreover, it is hardly necessary to dismiss Madison’s tremendous contributions to the Constitution itself in order to recognize why America should not relitigate a 230-year-old argument about America’s power to spend money on programs like Medicare. Hamilton was undoubtedly correct that his own reading of the Spending Clause is more consistent with the Constitution’s text than the reading offered by Madison—Madison himself concedes as much—but Madison was also correct to warn that the nation rejects a longstanding and widely accepted constitutional interpretation at its peril.
Millions of Americans depend upon programs such as Social Security, Medicare, and federal student loans, and America has grown into the wealthiest and most prosperous nation ever to exist in the years since these programs were enacted. Throughout this golden age, not one Supreme Court justice has questioned what Justice Scalia recently told a gathering of members of Congress: “It’s up to Congress how you want to appropriate, basically.”
Conclusion
Few things are certain in American politics, but after this week one thing is crystal clear—the American people cherish Medicare and they want no truck with an agenda that would destroy it. Sadly, far too many conservative lawmakers refuse to listen to their constituents on this basic and obvious point—to the extent of inventing a theory of constitutional interpretation that would achieve their goal of ending Medicare far sooner than the House Republicans’ ill-considered budget.
Conservatives will tell you that killing Medicare is the only way to read the Constitution consistently with the framers’ intent. Don’t believe them. The truth is that the only way to reach this conclusion is to hunt through the framers’ statements, cherry pick statements that conservatives like, and ignore the very text of the Constitution itself in the process.
By: Ian Millhiser, Center for American Progress, May 27, 2011
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