James Fallows

This took place while I was on the road in China, so I didn't catch up with it until just now. It is an editorial in (surprise!) the WSJ ten days ago that represents a certain kind of perfection in false-equivalence / black-is-white thinking. As a reminder:

I am in Internet range for only a few minutes, so let me just type this right out:

1. Today a provision that would increase background checks for gun purchases was blocked in the Senate, even though consideration of the bill was supported by 54 senators representing states that make up (at quick estimate) at least 60 percent of the American population.
2. The bill did not fail to "pass" the Senate, which according to Constitutional provisions and accepted practice for more than two centuries requires a simple majority, 51 votes. Even 50 votes should do it, since the vice president is constitutionally empowered to cast the tie-breaking and deciding vote, and Joe Biden would have voted yes.
   
3. It failed because a 54-vote majority was not enough to break the threat of a filibuster, which (with some twists of labeling) was the real story of what happened with this bill. Breaking the filibuster would have required 60 votes.
4. Since the Democrats regained majority control of the Senate six years ago, the Republicans under Mitch McConnell have applied filibuster threats (under a variety of names) at a frequency not seen before in American history. Filibusters used to be exceptional. Now they are used as blocking tactics for nearly any significant legislation or nomination. The goal of this strategy, which maximizes minority blocking power in a way not foreseen in the Constitution, has been to make the 60-vote requirement seem routine.
5. As part of the "making it routine" strategy, the minority keeps repeating that it takes 60 votes to "pass" a bill -- and this Orwellian language-redefinition comes one step closer to fulfillment each time the press presents 60 votes as the norm for passing a law.

Yes, this is the 20 millionth time I have made this point. (Recently here, with special Orwell-homage.) But here is why it is worth noting again. Just in the past few minutes readers have sent in these illustrations of the success of step No. 5, above:

From Business Insider (source of screen grab above):

GUN CONTROL VOTE FAILS IN SENATE -- Obama Speaks Now On Failure

With Vice President Joe Biden presiding over the Senate, an amendment to expand background checks on gun purchases failed to pass through the body, falling by a mostly partisan vote of 54-46...

Sixty votes were needed to pass the legislation through the Senate.

No, 60 votes were needed to break the filibuster threat. Note that in the "mostly partisan vote of 54-46" the 54 senators were voting for the measure.

From Politico, emphasis added:

The Senate has rejected a bipartisan proposal to expand background checks on firearms and close the so-called gun show loophole, handing President Barack Obama and Democratic leaders a major defeat on one of the key pieces of the president's second-term agenda.

The vote was 54-46, with only four Republicans crossing the aisle and voting with the Democrats in favor of the bipartisan proposal by Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.). Sixty votes were needed.

I won't add the line-by-line explication because you can do it yourselves. Actually, I can't resist: that last passive-voice sentence calls out for "to break a filibuster threat." Look at this home-page splash from Politico (below), and imagine if it said what actually happened: "GOP filibusters gun control."

From today's Politico story about the prospect that an assault-weapons ban will be filibustered in the Senate. Note the three passages in boldface:

The Senate Judiciary Committee has approved a hugely controversial ban on assault weapons and high-capacity ammunition clips, but the measure faces nearly certain defeat on the Senate floor....

The Senate now faces a floor fight in coming weeks over Democrats' push to dramatically alter U.S. gun laws for the first time in two decades. While the Feinstein assault weapons ban is unlikely to overcome GOP opposition and get a vote -- as well as concerns from red state Democrats up for reelection in 2014 -- Democrats and the White House will continue their drive to enact universal background checks on all gun sales.

Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee, acknowledged that the assault weapons ban will have a hard time overcoming opposition. "It's pretty clear the other side is locked in opposition [to assault weapons ban.] -- [I] don't see us getting 60 votes," Whitehouse said, referring to the necessary bar to pass the Senate.

I recognize that this theme now lacks novelty value. But here is why it matters to track an engineered usage-change as it is underway:

• It takes 51 votes to "pass the Senate."
• It takes 60 votes to break a filibuster.
• Through the past six-plus years, the GOP minority-power strategy in the Senate has deliberately aimed to make the filibuster, historically a rarity, seem routine and acceptable. Every news account that presents the super-majority 60-vote threshold as the "necessary bar" for Senate passage, and a majority of 55 votes as "certain defeat," ratifies this strategy. Especially in an "informed" insider political-specialist publication.
  

It wouldn't take any extra space to make things clear. The first highlighted passage could say "nearly certain filibuster" rather than "nearly certain defeat." The last passage could say "necessary bar to break a filibuster" rather than "necessary bar to pass the Senate." To look on the bright side, the middle highlighted reference is exactly right: the strategy is designed to keep the proposal from ever coming to a vote. (Thanks to AS for the lead.)

OK, I can't resist: Let's bring George Orwell to bear on this question. Naturally I'm talking about "Politics and the English Language":

But if thought corrupts language, language can also corrupt thought. A bad usage can spread by tradition and imitation even among people who should and do know better.

With a few weeks' retrospect, it's clear that the most objectionable part of the Chuck Hagel confirmation melee was not the personal smears, nor the posturing by Senators Graham and McCain et al, nor the first-ever filibuster of a SecDef nomination by senators who didn't want their blocking tactic to be called by its real name, nor even the demand by Senator Ted Cruz that Hagel disprove pulled-from-thin-air insinuations that he could be on the North Korean payroll.

The abuse of "filibuster threats" over the past six years has inured us all to the power -- and legitimacy -- of a "real" filibuster.

I am no fan of the way routine minority obstructionism has made 60 votes, rather than the constitutional requirement of a simple majority of 51, the standard for getting anything whatsoever through the Senate. But I have to respect the way the junior senator from Kentucky, Rand Paul, took the floor for 13 hours yesterday to mount a genuine filibuster to the nomination of John Brennan as CIA director*, and to raise questions about the unchecked life-and-death power President Obama has asserted in the open-ended "war on terror."

For more on the substance of Rand Paul's filibuster, see Conor Friedersdorf's summary. Even more important, in my view (since it affects a broader range of public business), is the potential of Paul's demonstration to shame Kentucky's senior senator and his colleagues who have indulged the lazy and destructive practice of fake filibusters. As Dave Weigel reported last night in Slate:

"If a person's going to make a stand on a nomination, this is the way to do it--the way Sen. Paul is doing it," [Oregon senator Jeff] Merkley said. "The American people can watch this and weigh in on whether he's a hero or a bum. That's reasonable. That honors the traditions of the Senate."

Merkley contrasted that with the filibuster that happened right before Paul's speech, one that got perfunctory media attention. For the third time, Democrats tried to advance the nomination of Caitlin Halligan to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. For the third time she got a majority of "aye" votes but couldn't break the 60-vote cloture threshold.

"That took no time or energy from any member," Merkley said. "It had no impact on the American people. It had no accountability. From the time that leadership struck its deal on the filibuster, they talked about the need for comity. And what we've seen since then is a 100 percent, all-out effort to paralyze this body.

This is the way to do it. In the less than 12 hours since Paul finished his filibuster, this may already have become a banal point, but it's worth re-stating: We've had a reminder of what's wrong with the way the Senate usually does its business, or avoids doing so. A good moment for Rand Paul.

(Photo from last fall, source here.)

Mike Lofgren, long-time Republican Senate staffer and author of The Party Is Over, says that both Jonathan Chait and I went too easy on the Washington Post editorial that presented an "all sides are to blame! please stop the posturing!" perspective on the sequestration stand-off. He writes:

It's worth pointing out that the partisan positions on deficit reduction which the Washington Post refuses to acknowledge are even worse than the mere binary choice of some spending cuts and some increased revenue versus all spending cuts and no increased revenue. As more than one House-passed "sequester avoidance bill" in the previous Congress has made clear, it is not just that the GOP wants all deficit reduction to be accomplished by spending cuts alone. It is that the GOP would prefer all deficit reduction to be borne by domestic spending alone through exempting the Pentagon. That is even more stark, don't you think?

 

An intriguing side note of this issue is Panetta's, the Joint Chiefs' and other Pentagon officials' wolf-crying to the effect that reducing the Pentagon budget from $600 billion to $550 billion "invites aggression" or leaves the US "vulnerable to coercion." Given the current partisan dynamic in Washington that I described in the previous paragraph, which party are Obama's own appointees objectively aiding?

And from another reader:

I understand the core of your false equivalence jihad.  But you are stretching it here.  Your use of "DC centrist" position as a benchmark means you are anchoring "truth" to political insider argument.  I happen to agree with  that position on this issue, but a wide range of approaches are very reasonable in this discussion.  There has been some tax increase, and some spending reductions since the base-line everyone quotes.  It is completely fair to debate whether or not the "DC centrist" position is in fact correct, and it is wrong to assume that a group that is farther from that position is "wrong." There is a reason economics is called the dismal science; unfortunately it often describes the effectiveness of predictions by economists (yes, I know that is not really the genesis of the saying).

 

We are in pretty unique economic times.  Out of the crisis.  In a recovery, which is very slow and uneven.  Profits and the stock market are up, unemployment seems stuck at 8%.  Small business are selling out in number you would not expect in a recovery. The federal government's share of the economy, and its debt level, are both at high points for most of the century.  Debate ranging from "it should be all taxes" to "it should all be spending cuts" is, unfortunately, all worth exploring.  Even if  neither extreme answer could win politically, it does not preclude a reasoned discussion on both points.  False equivalence exists, but let's not use it just because something is outside of opinion consensus.  Let's use it when it is outside of facts.  After all, there was a time that a strong consensus existed that the sun orbited the earth.

Fair points. But Chait anticipated them in his original item. Of course you could argue for a range of responses to fiscal problems: spending cuts only, tax cuts only, a mixture of the two, even no response at all. 

That's not what is happening here. The Post's editorial page clearly favors the mixed approach, which Chait labels "D.C. centrism." But when only one of the parties embraces that view, the Post appears to feels awkward saying so, lest it seem partisan. Instead it strikes a "false equivalent" stance of saying everyone is to blame for a big mess. That's why the subhead on Chait's item was "People Who Agree With Obama But Have to Pretend Otherwise."

For a clarifying comparison: I'm not a big fan of the WSJ's ed-page operation, but I would never accuse them of false equivalence. Same with Fox News.

An item today by Jonathan Chait, on New York magazine site, is as clear a dissection of "false equivalence" as you will ever see. It is worth reading carefully, for reasons of both tactics and strategy. Tactically, it is a very useful guide to the arguments you'll be hearing during Countdown To Sequester these next few days. Strategically, it explains the tics and tells that give away "false equivalence" reasoning in general.

Respectable centrist position agrees with Obama's position. But to agree with one party is not a respectable centrist thing to do. And so a wide stream of coverage and commentary on this issue is dedicated to actively misleading Americans about what the two sides are proposing.

Below we have the front pages of this morning's papers. Today the "calling things by their right name" trophy goes to the Washington Post. The Post's headline uses the word "filibuster"; the subhead uses the word "unprecedented"; and the line below that -- a "dek" in our parlance, not sure what they call it at the Post -- makes clear that this is purely obstructionist delay, since Hagel will probably still get through. 
Now, readers weigh in. In response to another reader's suggestion that the Tribe of Elders among GOP defense experts -- Colin Powell, Brent Scowcroft, Robert Gates, George Schultz, etc, all of whom support Hagel -- try to shame the obstructionists and call out for quick confirmation, this response:

What good would a stern talking-to from that group do? 

Those men retired and the GOP "they knew while they were in office" no longer exists, however much they may long for it.  It isn't waiting in the wings somewhere; it's dead.  It was very deliberately and systematically killed off by the GOP we have now. 

Strom Thurmond probably longed for the Democratic Party he knew before the Civil Rights Movement, but that only made him less relevant to the Democratic Party that replaced it.  His views were the very thing the party intentionally cast out of itself.  Powell, et al., are similarly situated.  Their pragmatism in governance and realism in foreign policy are the very things the current GOP deliberately and systematically cast out of itself.  It could hardly be less interested in what they think.  It wants purity, and they are RINOs. 

Which is to say they are in exactly the same category Chuck Hagel is in, for exactly the same reasons.  Which is to say that if their opinions still carried weight in the GOP, they wouldn't need to express them in this context.  Hagel would already be approved.

And to the same effect, from a reader in the Midwest:

I think your reader, and a lot of supporters of these 'moderate' Republicans (at least where national security is concerned), miss something: they functionally have no power and essentially no sway in the modern GOP.

From where I sit as a denizen of a midwest state, Iowa, which could go either way in any election for statewide or national office, the current GOP pays no attention to anyone who doesn't either have a lot of money, or a lot of support at the base. While Powell, Gates, Scowcroft and Schultz may have a long tradition of service to the country and a lot of mindshare among the foreign policy elites around Washington, they have essentially no power.

The elected officials of the GOP care only about elections at this point: winning them and rigging the system to allow them to continue to win them. The threat of Tea Party challenges ratchets elected officials ever further to the right, and the need to raise incredible amounts of money from the rich to fight primary challenges and general elections (where their stances coming out of the primaries makes them increasingly less competitive in statewide elections) means that the old, non-officeholding guard that previously held influence by length of service and regard as 'Serious Men' have no real power. Look at what happened to Bob Dole on the Disabilities Treaty.

Whatever the Old Guard says, even if it's a full throated roar of approval for a vote on Hagel combined with all the back room arm-twisting they can manage, I doubt it will have any noticeable influence.

From another reader, on Harry Reid's recent and apparently already-nullified "agreement" with Mitch McConnell about limiting abuse of the filibuster:

It is worth noting that one of the mildest proposals for filibuster reform at the start of this legislative session was to require the filibustering side to muster 40 votes to deny cloture, which is subtly but importantly different from requiring the majority to muster 60 votes.

I don't know what happened to that idea.  It sure seems like that is the very least that Reid could have demanded in his negotiations with McConnell.  It sure would have made a difference here.

Caveat:  Orrin Hatch, for whatever reason, voted "present".  If his vote had been needed for a 40-vote threshold, perhaps he would have acceded and voted with the obstructors.  So maybe the only real effect would have been to make Hatch stick his neck out.

Finally for today's installment, another reader with an idea of what veteran politicians could do, if they adopted an "intensify the contradictions" / "the worse, the better" outlook:

Earlier this week, I think it was after reading the first rumblings from Sen. Inhofe that a filibuster of Hagel was in the making, I already started thinking that we're probably past the point of no return in the Senate. I think the only way to resolve the problem is to take things to their logical conclusion:

One of our esteemed Senators must step up and use his/her exalted Hold privilege...to start placing holds on absolutely every item of business that comes up. Declare that no nomination, no resolution, no bill will proceed until the chamber's rules are fixed to prevent a single Senator (or small group) from hijacking the process. And I do mean everything: be prepared to force the courts, executive agencies, and everything else to grind to a halt until this particular, quirky whim of a single Senator is satisfied. Dare the chamber to either expel him/her or invoke the 'nuclear option' in order to  lift the holds without having to fix the filibuster rules.

The irony of a single Senator using its 'hallowed' rules to destroy it would be delicious (and absurd!). Yet it seems that many, both inside and outside the Beltway, are incapable of seeing the damage wrought by the Senate's rules until someone actually has the guts to demonstrate it.

Sadly, our current political class seems incapable of acting until a crisis is upon them, so maybe it is time to force a showdown.

I think the only ones capable of pulling off this sort of stunt are those senior Senators who have decided to retire at the end of their current terms, and thus can think in 'institutional' or 'legacy' terms rather than considering their personal political prospects. Unfortunately, those are also the people least likely to feel that the filibuster rules are such a major Constitutional problem.

But it's a satisfying dream...

For those following at home, today's developments:=

Republicans denied that their actions constituted a filibuster because they expect Hagel to be confirmed, and they insisted they will allow a simple-majority vote on the nomination later this month.

Sure, that makes sense.

The SOTU annotation is being formatted and prepared for posting. Meanwhile, following these items about the degradation of the Senate Armed Services Committee and the likelihood of a filibuster against Chuck Hagel (without using that word), a reader in Florida writes:

It seems to be a very ripe moment for prompt, effective action by a select group of GOP elder statesmen. You mentioned previously that Republican appointees Robert Gates, Colin Powell, Brent Scowcroft, and George Schultz strongly supported Hagel's nomination. They also share a core characteristic: they reflect the pragmatic legacy of the GOP, as opposed to the overarching ideology and obstructionism we see now.

I'm presuming that these elder statesmen are deeply disturbed on several levels. One, Chuck Hagel is a decorated veteran and a worthy nominee. Two, these patriotic individuals have to be distressed by what this Senate dyfunction means generally for national security. Three, the same dysfunction immediately threatens DOD with the sequester nonsense. Finally, as longtime Republicans, it's logical to assume that they long for the GOP that they knew while they were in office, a GOP that actually values governing effectively.

The good news is, these GOP elder statesmen could kill several birds with one stone. They could publicly issue a very strongly worded joint letter, specifically calling out Senate Republicans who would filibuster Hagel rather than allow an up-or-down vote. The letter could condemn the overuse of the filibuster (or threat thereof) by the GOP, and how it is weakening America economically, politically, in foreign policy and defense.

Why would these individuals do this? To save their party from itself, to keep the USA strong, and to confirm a nominee who they deem worthy of the office.

At this moment in time, I simply cannot think of a better moment for old-guard, patriotic, Republican pragmatists to resurrect the real GOP. But they must act quickly.

State of the Union update is near. In the meantime, this dispatch from Charles Stevenson, a long-time Senate staffer, former professor at the National War College, and author of a standard text on the job of the secretary of defense. He is referring to the polarization, grandstanding, and threats of filibuster that have emerged over the nomination of Chuck Hagel as SecDef:

I despair. I worked on the Senate Armed Services Committee for ten years and have followed it closely ever since. We had big fights - over Vietnam, ending the draft, the B-1 bomber and MX missile - but members always recognized that they needed to compromise in order to pass a defense authorization bill, which the committee has now done for an amazing 51 years in a row.

My bosses sometimes put holds on nominations in order to get more information from the executive branch, and we even threatened filibusters a couple of times. But nobody abused those tactics. Sometimes the committee even voted against a presidential nominee, but still reported the nomination to let the full Senate decide - by simple majority vote. SASC members always put the institution ahead of party or politics.

The one glaring exception to that committee comity was over John Tower's nomination to be secretary of defense. But the opposition to the former SASC chairman was bipartisan, over moral and character issues, and not to embarrass the president or fight administration policy. The SASC voted 11-9 to reject the Tower nomination but still sent it to the floor, where the Senate voted it down 47-53. No filibuster, just a simple majority vote. [JF note: to be clear, 53 members of the Senate, an absolute majority, voted against Tower. This wasn't like what we've become accustomed to and is in prospect in the Hagel case: a 40-something vote minority blocking the nomination by filibuster or other procedural obstacle.]

The behavior of some of the new members on the Hagel nomination is way over the line - disgraceful! They show no respect for the institution and are likely to poison its ability to work in a collaborative way. They are also hurting the institution of the office of Secretary of Defense and thus undermining our system of civilian control.

I still want to reserve the filibuster for rare and special cases, but the Hagel opponents are making it harder for us defenders of the Senate's unique character to support our own case

1) The Senate discovers the Constitution. Barring some development no one now anticipates, former Sen. Chuck Hagel (R-Neb.) will become the next secretary of defense. We know that because Hagel opponents like John McCain and others have magnanimously said that they will "allow" an up-or-down vote on his nomination, rather than subjecting it to a filibuster. Here is how another Republican put it:

"For a cabinet office, I think 51 votes is generally considered the right standard for the Senate to set, and at that level, I think he makes it," Senator Roy Blunt of Missouri [right], a member of the Republican leadership, said Friday on Fox News, even as he announced his opposition to Mr. Hagel.

Why is this interesting? Because "at that level" could also be described as "what the Constitution says."* For those joining us late:

• Most A hugely disproportionate share** of the filibusters in the two centuries-plus of America's history as a republic have happened since 2006, when the Democrats regained control of the Senate and the Republican minority, under Mitch McConnell, made the filibuster a routine blocking technique;
• Before that time, most nominations and legislation required a 51-vote majority for approval, with rare exceptions requiring 60 votes to break a filibuster. Since then, 60 votes have been required for almost everything;
• This defacto rewriting of the Constitution is ratified each time a news organization says (as reporters from both NPR and MSNBC did during this past week) that a certain measure lacks "the 60 votes required for passage," and it is reflected by "concessions" like Sen. Blunt's, above. Pretty soon no one will remember that a "simple" majority vote, far from being some exceptional bipartisan allowance for cabinet appointments, is how the system was designed -- and had operated through its first two centuries;
• In fact, in the entirety of American history, no Cabinet nomination has ever been filibustered. As a marker of how far we've come, most media reports treated the Blunt and McCain announcements as "news" -- rather than underscoring that the very idea of a filibuster would have been a historic first. 
  

2) Walter Pincus states the plain truth. As I argued before, no one came out looking good after Hagel's day in front of the Senate Armed Services Committee last week. But the veteran Walter Pincus of the Washington Post highlights a particularly awkward reality:

There were several obvious answers on Thursday when Sen. Lindsey O. Graham (R-S.C.) asked Defense Secretary-designate Chuck Hagel to "name one person, in your opinion, who is intimidated by the Israeli lobby in the United States Senate" during the Senate Armed Services Committee confirmation hearing.

One answer could have been "the two of us": Graham, for example, by asking such a silly gotcha question, and Hagel for not standing up for his past words that reflect the belief of many who have watched the Senate over the years....

When Graham asked Hagel to "name one dumb thing we've been goaded into doing because of the pressure from the Israeli or Jewish lobby," the answer should have been "a good part of today's eight-hour hearing."...

Thursday's hearing was a perfect illustration of why the public has such a low opinion of Congress and why Americans should be concerned that their legislative branch often seems no longer to be playing a serious role in government.

Of course, Hagel would have been crazy to say any of those things. The goal of a witness in a confirmation hearing is not to score debating points with Senators but instead to act cooperative as they perform in front of the cameras -- and just get the process over with. But if Hagel had been willing to go down in flames, he could with complete justification have said what Pincus suggests.

Update: In case you haven't seen it, at Time online Brandon Friedman has this chart of senators' questions about Israel and about Afghanistan, where some 65,000+ U.S. troops are still in combat. As mentioned earlier, a chart contrasting mentions of Iran vs. those of  Afghanistan would have shown a similar skew.

 
__
* Article II, section 2, on presidential powers:

The President ... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That is: The Constitution sets out certain exceptional circumstances, like approval of treaties, for which more than a simple majority vote is required. For the rest, majority rule is assumed, within all the other checks-and-balances created by the Constitution. You already knew that -- but it would be natural to have forgotten it in recent years.

The issue today isn't that we see 50, or 100, or 150 filibusters. It's that the filibuster is a constant where it used to be a rarity. Indeed, it shouldn't even be called "the filibuster": It has nothing to do with talking, or holding the floor. It should be called the 60-vote requirement. It applies to everything now even when the minority does not specifically choose to invoke it. There are no longer, to my knowledge, categories of bills that don't get filibustered because such things are simply not done, though there are bills that the minority chooses not to invoke their 60-vote option on.

One of the biggest "dog that didn't bark" surprises of the past week has been the relative lack of "election was stolen"/"voter fraud"/"it's all because of ACORN" themes from the Fox-influenced conservative media and politicians. A few days before the election I argued that there were a number of signs of this "pre-delegitimization" theme setting in.

A reader notes that it hasn't happened, and that we should be grateful:

I know before the election some people wrote in predicting a post-election Republican campaign to promote the idea that Obama's win was not legitimate. However fortunately this seems to be failing to materialize.

Erick Erickson of RedState told his readers, "Barack Obama won. He won by turning out the most people in a well run campaign. In other words, he won fair and square."

In an interview with ABC News, Paul Ryan said, "The president deserves kudos for having a fantastic ground game, and the point I'm simply making is he won. He won fair and square. He got more votes, and that's the way our system works, and so he ought to be congratulated for that."

These are just two examples, and it's still quite early, but these are still encouraging signs. So that's some good news.

And here is a third example: last night on CNN, just one week after the election, the Republican governor of Virginia, Bob McDonnell, said (to paraphrase): "The results are in, the president won, his team has their turn to govern, let's move ahead." Worth underscoring how different that tone is from (a) the immediate reaction after the results four years ago and (b) what might have been. Sen. Mitch McConnell, whose reaction once again boils down to "the results are in, now the president better agree with us," has not fully internalized the message, but it is reasonable to hope that he is a lagging indicator, like Karl Rove on election night. 

As I mentioned a few months ago, Common Cause is taking legal action against the filibuster, arguing that its recent abuse rises to the level of unconstitutional power-grab. When our site's "categories" feature, now temporarily broken, is back up and running, I'll link to previous posts on this theme. For now, here's a chart from Common Cause showing how often the filibuster has been threatened or imposed over the past century:

Sorry to have an unusual pileup of items in one day, but lots of news. From the Washington Post today, following up on a comment by Sen. Majority Leader Harry Reid last week on MSNBC:


And of course the question that is very interesting in a different way is what the Democratic policy on filibusters will be if, as could well happen, they lose control of the Senate this fall. We've looked at that briefly before (also see this, this, and this), and odds are it will come up again. But for now, it's enough to say that it's good to see Harry Reid making this claim. (Thanks to Kai Rysdall for the reminder.)

A reader visiting Richmond sends this report:

While here I took the opportunity to attend the weekly re-enactment of the Second Virginia Congress of 1775 at which Patrick Henry offered up his choice of liberty or death. It's actually not a bad piece of theatre, and offers an accessible insight into the political options of the time.

But we were told that the final vote on the proposal being considered- creating a militia for defense of Virginia against any future British threats- passed by only four or five votes; and it then occurred to me that if we had had the filibuster in colonial times, Patrick Henry would never have had the opportunity to utter his immortal words.  

It just seems to me that there's a jingoistic, American-flag-draped approach to denouncing the Republican anti-American use of the filibuster.  Maybe Karl Rove will craft it when the next Republican president takes office...

That last prediction is very shrewd.

The Congressional Research Service is a non-partisan arm of the Congress whose purpose is to provide well-researched answers for questions raised by members of the Senate and House. This week it put out a report on another sign of increasing public dysfunction: the mounting number of vacant seats on the Federal judiciary, for both district courts and circuit-court appeals judges. They are vacant mainly because of the increasing difficulty of getting nominations approved by (you guessed it) ... the U.S. Senate.

Refreshingly, this is not strictly a partisan issue! Senate showdowns over judicial nominees have ramped up under both George W. Bush and Barack Obama. This chart shows the percentage of nominees who were finally approved by "roll call" vote in the Senate. The significance here is that back in the Reagan and first George Bush administrations, virtually all nominations were approved by voice vote -- ie, in an uncontested, pro-forma way.


In this chart we see that the current Republican Senate minority, under Obama, has done essentially what the Democratic Senate minority began doing under Bush: forcing nearly all nominations to a contested vote.

But something has changed under Obama, according to the report. He is the only president in the past few decades (most figures go back to Reagan) to have more seats vacant as he began his re-election year than he inherited when he took office.

This chart, which covers appeals-courts judges, looks a little confusing, but its main point is: Clinton and George W. Bush ran for re-election with their appointments-and-confirmations staying ahead of deaths, retirements, creation of new posts, etc. They spent their first few years filling more seats than opened up. Clinton inherited 17 vacancies, and had 12 left when he ran. Bush inherited 26, and had 17 left in his re-election year. But Obama inherited 13 open seats -- and at the start of the year had 16.

The Atlantic still laments the departure/graduation/loss of our friend and colleague Joshua Green (at right), who did great work here for many years and is now at Bloomberg Businessweek. But he still is doing great work, most recently with a column for the Boston Globe on -- wait for it -- how the boring-sounding filibuster really has become a first-order distorting problem.

I turn the microphone over to Josh:

An easy way to grasp [the filibuster's] importance, and why filibuster abuse has made Washington such an angry, dysfunctional place, is to imagine what the country would look like without it.

Let's take only the Obama presidency. Had the filibuster not applied, the United States would have a market-based system to control carbon emissions, which would limit the damage from global warming, vitalize the clean technology sector, and challenge other large polluters like China and India to do the same. The new health care law would have a public option. Children of undocumented immigrants who served two years in the military or went to college could become US citizens. Women paid less than their male colleagues because of their gender would have broader legal recourse against their employers. Billionaires would not be able to manipulate the political system from behind a veil of anonymity.

Dozens of vacant judgeships would have been filled. The Federal Reserve would have operated with a full slate of governors, including Nobel Prize-winning economist Peter Diamond. Elizabeth Warren would be director of the Consumer Financial Protection Bureau, not a candidate for the Senate....

Each of these measures passed the House and received, or would have received, at least the 50 votes necessary to pass the Senate -- but lacked the 60 votes to break a filibuster.

And while of course these are all Democratic measures that have been impeded --"Let's take only the Obama presidency" -- he immediately goes on to point out that a comparable use of the filibuster when the Republicans are back in control will hog-tie them as well.

For another time, we'll go into the ways in which the filibuster and overall government dysfunction are not really symmetrical "extremists on each side make both sides suffer" situations. The Democrats overall have a greater stake in effective use of public programs -- from GI Bill and Medicare of yesteryear through financial-regulation bodies today, and even the Census Bureau, as explained in an important NYT story today. Thus a bias toward a minority-veto, paralyzed Senate has an overall right-wing effect. But any administration is hamstrung if it cannot fill judicial seats, get ambassadors in place, staff up the executive branch, etc.

For a change, here is some positive and even practical advice on what to do about a country whose private economy and culture are still highly resilient, but whose ability to address public problems is being destroyed. I have two books and one article to recommend.

1) Ten Steps to Repair American Democracy, a book by Steven Hill, with foreword by my old speechwriting comrade Hendrik Hertzberg. Practical suggestions for improving campaigns, elections, and the functioning of the legislature, without invoking the deus ex machina of a whole new Constitution.

2) The Gardens of Democracy, by Eric Liu and Nick Hanauer. Liu is another one-time speechwriter, in his case for the Clinton administration; Hanauer is the creator of the recent controversial censored-for-a-while TED speech on inequality. Their book is about the crucial role of "public stories" -- the way we talk to ourselves about the public and private life. All great political leaders, from Lincoln to FDR to Churchill to JFK and Reagan -- have understood that people respond much more powerfully to parables and narratives than to debater-style ten-point analytical briefs. From the time of FDR through Reagan, Frank Capra-style "we're all in this together" narratives dominated. Since Reagan's time, "get the goddamned bureaucrats off my back" narratives have prevailed, usually accompanied by a parallel "keep the government's hands off my Medicare" false-consciousness theme. Liu and Hanauer suggest a new narrative approach.

3) "Want to End Partisan Politics?" in the WaPo today by Thomas Mann and Norman Ornstein. Mann and Ornstein have received deserved acclaim for a recent article and book on the real sources of governmental failure. Today's article suggests some things that actually could be changed.  

Enjoy the rest of the weekend.

News has piled up fast about the filibuster in the past two weeks, and I am way behind in taking note of it. While I have ten minutes at a computer just now -- and am not in a taxi, in a security line, in a green room, or in some other fashion enjoying the delights of new-city-each-day travel -- here is a quick update on some relevant reading tips:

1) Ezra Klein on the lawsuit Common Cause is initiating, on grounds that abuse of the filibuster has risen to the level of unconstitutional offense. (More info from Common Cause here.) Klein's item also has this explaino-graph:


2) Greg Sargent on the blunt anti-false-equivalence article by Thomas Mann and Norman Ornstein last month (from their book), and the "move along here, nothing to notice" attitude of some of the media outlets who were most directly the objects of Mann and Ornstein's criticism.

3) Harry Reid seeing the light about what filibuster abuse has meant.

Lots more on this topic ahead; just wanting to point out some of the signs of progress, while also indicating that I have not entirely dozed off at the controls.

This morning, early!!, I was on the MSNBC show Up with Chris Hayes,* discussing China, politics, and other matters. (With Catherine Rampell, David Frum, Ann Lee, and Alexis Goldstein.) China clips here and here, with Hayes's intro here.

And the end of the show, Hayes has a "you should know" segment about events for the week ahead. My nominee was a report from the Alliance for Justice, for release tomorrow, on how the filibuster-everything modern Senate has affected the Obama administration's ability to staff the federal judiciary. The press release about the report is here, with a link to this PDF of the findings as a whole. By all means give it a read.



I am storing up for an omnibus "more about the filibuster, false equivalence, and nullification than you can imagine -- plus some solutions!" post someday soon now. For the time being, and in explanation of what I was talking about on the show, here are the summary points from the report, with emphasis in original. See if this reminds you of any other patterns you've seen in recent news involving the Senate:

• "On May, 7, 2012, the Senate will finally finish dealing with the nominees left pending on the Senate floor at the end of last year.  The Senate has yet to confirm a single nominee submitted by the president in 2012.
• "During President Obama's first term, current vacancies on the federal bench have risen by 43%. This trend stands in stark contrast to President Clinton and President Bush's first three years, when vacancies declined by 57% and 60%, respectively.
  
• "Nearly one out of ten federal judgeships remains vacant.  Judicial vacancies are nearly double what they were at this point in President George W. Bush's first term.
• "As of May 7, the number of seats considered to be "judicial emergencies" will have risen by 70%, from 20 at the beginning of President Obama's term to 34.
• "The Senate has confirmed far fewer nominees at this point in President Obama's first term than it had for his two predecessors in office. The percentage of confirmed district court nominees is at historically low levels..."

There's lots more. The second point on the list above deserves special attention. For all their differences, George W. Bush and Bill Clinton were able, during their first three years in office, to place many more judges on the federal bench than left or retired. Thus, the vacancy rate went down. Obama has been able to place many fewer. Thus vacancies have gone up. Also, as the report makes clear, both the Republican minority in the Senate and the Obama Administration bear responsibility for this problem. The Republicans have been more willing to filibuster nominees than previous Senate minorities have -- and the Obama administration has been slower than George W. Bush or Clinton in getting nominees submitted to begin with or fighting the filibuster head-on.

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* Even allowing for some of the advantages Hayes has with his relatively new show -- it's two full hours of live TV each Saturday and Sunday, the early-morning "hey, maybe no one's watching!" factor may loosen up discussion -- over the months it's been a more sophisticated discussion of political/policy issues than you're used to finding on TV.