What Goes Around Comes Around

Back in 2016, as the Obama Administration was coming to a close and before the country experienced the trauma of the Trump Administration, I did a post that urged then Vice President Joe Biden to exercise an important duty of the Vice President -- i.e. issuing an advisory opinion about internal Senate procedure. As the old saying goes in politics, "What goes around comes around." So here we go again debating whether we should once again change the filibuster rule in the U.S. Senate. 

Although Minority Leader Mitch McConnell (R-KY) now claims a change would ruin the integrity of what was once considered “the world's greatest deliberative body,” both parties have changed this Senate rule before when it suited their political ambitions at the time. As the rule has been chipped away, misused, twisted and distorted in recent years, maybe it's time to put it to bed or develop a workable replacement. As it currently stands it is one of the most destructive and divisive components of Congressional decision-making. It has led to an untenable and undemocratic trend of roller coaster governance by Executive Order. It is not a Constitutional requirement; it is simply a Senate rule that may be changed by a simple majority vote of the Senate. Unfortunately, V.P. Biden did not follow up on my request, but it still seems timely. So I'll pass it along again.

July 12, 2016

V.P. Biden Could Lead Gridlock Reform

An Open Letter To Vice President Biden

Mr. Vice President, now is the time for you to 

exercise one of your important duties.

Dear Mr. Vice President,

The Brennan Center for Justice at the New York University School of Law, a nonpartisan law and policy institute that seeks to improve our systems of democracy and justice, has indicated that “Although often overlooked, one of the duties of the vice president is to act as president of the Senate, including issuing advisory opinions about internal Senate procedure.”¹

I am writing to you to remind that you are in a very unique position at a critical point in our nation’s history to issue an historic Advisory Opinion on internal Senate procedures that could be a highlight of your legacy and a manifesto to challenge and guide the future operations of the United States Senate.

First of all, as President of the U.S. Senate you are in the foremost position to issue such a manifesto. Secondly, your 36 year career as an active U.S. Senator, combined with nearly 8 years as Vice President and Senate President, has given you a perspective unmatched by any individual. Thirdly, your apparent retirement from elected office, gives you a credibility and neutrality which is necessary to speak on a controversial issue that demands bipartisanship, yet defies resolution because of its powerful political scope that benefits both major political parties. Finally, as the Obama Administration draws to a close and a new Presidency has yet to be decided, and a new Congressional session looms, the timing could not be better to set the stage for a new era Senatorial reform.

As you and all Washington, DC insiders know well, certain Senate procedures and rules are a major contributor to governmental gridlock and dysfunction. The excessive increase in the so-called “silent filibuster”; the arcane procedure known as a Senatorial “hold”; and the ability of Senate Leadership and Committee Chairs to ignore Constitutionally-mandated functions (advise and consent) because there are no specified procedural time limits (e.g. Supreme Court appointment), are a few examples of rules and procedures that demand changes.

Some will argue that such changes require a two-thirds vote of the Senate, but that argument has been dispelled by both Republicans and Democrats.

Again, citing the Brennan Center, “The Constitution nowhere requires a two-thirds vote for changing Senate rules and does not even mention filibusters. The Constitution states that ‘each house may determine the rules of its proceedings,’ and the document requires a two-thirds vote only for impeachments, expelling a member, ratifying treaties, overriding presidential vetoes, and proposing constitutional amendments. There is simply no reason to believe that the framers of the Constitution thought a two-thirds vote could be required for the Senate (or the House) to change its rules. The straightforward inference is that, as a constitutional matter, only a simple majority is required.”²

Without going into the details of these extreme extra-parliamentary practices that both parties have self-imposed on House & Senate procedures, it is these very practices that have led, in large part, to the current dysfunctional government and the increasing public unrest.

It is my opinion that if you dig deep into the search for solutions you can find it in the simple concept of "majority rule." For the last several decades inside political manipulation by both parties has undermined this basic concept, and as a result given rise to a devilish concept of "minority rule." This nightmarish concept defies compromise and feeds on government stagnation, obstruction and inaction on increasingly perplexing problems and issues that demand action -- that's why the public is mad – that’s why they have lost their trust and respect for government.

Not only do these practices grind decision making to a standstill, but they allow for increased leverage for lobbyists and moneyed influences. These practices are the "demons of democracy" and have led to the public’s perception that Congress is basically useless as a governing body – e.g. approval ratings less than 10%.

As Thomas Jefferson pointed out way back in 1809, "Where the law of the majority ceases to be acknowledged, there government ends, the law of the strongest takes its place, and life and property are his who can take them." He also said, "All... being equally free, no one has a right to say what shall be law for the others. Our way is to put these questions to the vote, and to consider that as law for which the majority votes."³

The “demons of democracy” have so distorted the democratic process envisioned by the Founders and the Constitution, as to make it unrecognizable. No elected President (Democrat, Republican or Independent) can achieve their stated or envisioned goals for the country because of these constraints. The result is that the majority public and winning candidate are denied any opportunity to see their vision actually implemented.

We must have trust in the majority rule system as it may not always deliver the results that we, as an individual, envision; however, if decisions are really bad, the majority corrects itself by changing direction. The founders believed in the concept of majority rule and we have now drifted away from that cornerstone.

Mr. Vice President, your leadership on this vital issue at this critical time can help turn the tide of what is becoming a dangerous decline in the public’s belief in our democratic form of government and our political leaders from both major parties. . .

Please use your position, experience and authority to address these critical issues in an Advisory Opinion on internal Senate procedures.

¹ The Filibuster Myth, Frederick A. O. (“Fritz”) Schwarz, Jr., January 15, 2013. Brennan Center

²The Filibuster Myth, Frederick A. O. (“Fritz”) Schwarz, Jr., January 15, 2013. Brennan Center

³ Thomas Jefferson to Annapolis Citizens, 1809. ME 16:337 & Thomas Jefferson: Address to the Cherokee Nation, 1809. ME 16:456

Bipartisanship On Hold

 Bipartisanship On Hold

I've always been an advocate of bipartisanship and compromise in politics. It started in the late 1970's when I was a young civil engineer and community planner that had transitioned from an environmental consulting firm and began working for a prominent environmental advocacy organization. I think my experience in community planning, explaining plans and concepts to diverse groups (industry, government & NGOs) and conducting many public hearings and meetings helped me understand the varying differences of group opinions and perspectives.

Because of my education and experience I was able to bridge a relatively large gap between legal, technical practitioners in the environmental field with citizen activists clamoring for a cleaner, less threatening environment. Both groups had their political pipelines to the movers and shakers at the state capitol. I became a credible negotiator between many diverse groups including the politicians. 

I began to realize the power of accomplishment that could be achieved when these diverse groups worked together, resolved differences and compromised on solutions. Those were my roots in bipartisanship and I later went on to establish a set of bifurcated nonprofit and for profit corporations to focus on bipartisan objectives, unbiased information and compromised solutions to environmental issues. The whole deal consumed 46 years of a lifetime.

So it was only natural when I retired to start a blog on the "Underpinnings of a Broken Government." Through the years I had seen the advantages of bipartisanship, but I had also seen the many obstacles in the way of constructive solutions to problems and issues. 

Back in early 2016, a volatile political year, when I began the blog, I posted a number of missives on gridlock and the dysfunctional Congress. That's when observers were concerned with what I called gridlock gimmicks such as filibusters; cloture votes; senatorial holds; the Hastert rule; Speaker control; Majority Leader control; Rules Committees control; avoidance of Regular Order; refusing to act; timing delays; riders and unrelated matters; and on and on. All in all it's a massive collection of procedures, policies, traditions, formal and informal rules all being used and manipulated by the majority and minority political parties in Congress. 

The concerns were the growing dysfunction of Congress and the near paralyzing effect on government. Then we transitioned to Donald Trump and the evolution of a much different political atmosphere in the country. What I had previously called the traditional, conservative Republicans were captivated by the Pied Piper of Divisiveness and gravitated to his persistent lies and misinformation which they accepted blindly. With schoolyard nicknames, lies, conspiracy theories and a Twitter account, he showed Republicans a new brand of politics and they welcomed it with open arms.

What at first may have appeared as a novel new "kick'm & shove'm" wild west style of politics that turned political norms upside down, quickly started to amplify an already known bigoted underbelly. What followed was a wildly distorted, Republican voted tax cut, appointment of three Supreme Court justices, the Mueller report on Russian interference in the 2016 election, scandal upon scandal, an impeachment, immigration crisis, a mismanaged pandemic needlessly killing tens of thousands, a revolving door of firings, resignations and replacement sycophants; embarrassment and disaffection among our allies, sinister new relations with our enemies and increasingly tyrannical behavior from the Oval Office.

The country waded through the long slog of this hideous epoch of American political history and approached the 2020 election in the midst of a pandemic. The public was confronted with continuous and persistent fabricated claims that the election was guaranteed to be rigged by Democrats and fraudulent if it yielded anything other than a Donald Trump victory. 

Despite the fact that the Trump presidential approval averaged in the low 40s and never reached 50%, his corrupt, despotic style had morphed a large majority of the Republican Party and many Independents into a new political entity with a radically distorted vision of American democracy and the Constitution. Although 81 million persons voted for Joe Biden; 74 million voted for Donald Trump after experiencing four abysmal years of incompentent, bigoted, autocratic leadership. Additionally it is important to note that in spite of the large Biden popular vote victory, Donald Trump, probably the most odious President in U.S. history, could have been reelected by the Electoral College with the shifting of approximately 50,000 votes in 3-4 states. A similar small number of votes (about 80,000) could have allowed Hillary Clinton to defeat Trump in the 2016 Electoral College as well as winning 3 million more popular votes.

Unfortunately, the 2020 election and large popular vote Biden victory did not settle the differences between Democrats and the new, Trump-laced Republican Party. Trump and his compatriots launched a crazed, obsessive, delusional legal rampage challenging the election results claiming widespread fraud and a stolen election. The results were repeatedly conclusive in some 61 separate court cases in federal and state courts including three decisions from the U.S. Supreme Court -- there was no fraud; it was a completely fair and proper election. 

Following the official Electoral College vote on December 14, 2020, the rage did not stop and disassociated itself from reality and is now referred to as the "Big Lie". Despite the conclusion that the election was completely fair and legitimate, Trump continued his fraudulent claims and even threatened state officials in an attempt to find additional votes that would allow him to alter certified results and declare an illegitimate win. A cult-like movement demanding "Stop the Steal" developed around Trump's efforts to perpetuate the Big Lie. 

Finally, at the last official decision point in the process; on January 6, 2021, before the inauguration of President Joe Biden on January 20, Trump and his immediate cohorts made good on what they had promised would be a "wild" time, by whipping a crowd of hostile insurgents into a frenzy with lies and angry rhetoric. They encouraged them to march on the U.S. Capitol in an effort to forcefully persuade House and Senate members and the Vice President to overturn the U.S. presidential election results to Stop the Steel and award the presidency to Donald Trump. The insurgents threatened assassinations, hangings and extreme violence. What resulted was the worst, most violent invasion of the Capitol and assault on the U.S. democracy in American history. [Storming of the United States Capitol]

Hours later, when the insurgence was finally put down, the House and Senate resumed their review and deliberation of the election results. Seventy percent (70%) of House Republicans and twenty percent (20%) of Senate Republicans voted to overthrow the results of a free and fair election. Subsequent efforts to impeach Donald Trump for the second time and hold him accountable and provide consequences for such seditious presidential actions were rejected by ninety-five percent (95%) of House Republicans. Preliminary actions in the U.S. Senate trial on the impeachment have already revealed that ninety percent (90%) of Senate Republicans are opposed to the impeachment trial.

Through their recorded votes to overthrow a legitimate U.S. election and their recorded votes to reject holding Donald Trump accountable for his seditious involvement in the presidential election and the Capitol insurrection, the Republican Party has overwhelmingly demonstrated that it holds a perverse, perverted and far from traditional view of American democracy and the U.S. Constitution. Now, several weeks beyond the egregious insurrection and the inauguration of a new President, Donald Trump continues his contentions and conspiracy theories of a fraudulent and stolen election. Likewise Republicans in Congress and their leadership continue to confer with Trump on the Party's direction, resist imposing any punishment or consequences for his actions and some still believe the election was stolen.

The aftermath of the Donald Trump presidency has left many questions and uncertainties regarding the state of the Republican Party and its future. Large majorities of the Party seem to have a far different view of the representative democratic republic and the traditional norms of U.S. politics. Until the Republican Party examines itself and clarifies its current extreme positions and its expectation for interaction in more traditional U.S. politics and governance, the concept of true bipartisan resolution of problems and issues facing the country is impractical and quixotic. 

While it may be possible to find an exceedingly small percentage of Republican legislators to align with Democrats to address issues and solve problems, the barometer of good governance should be consistency with widespread public opinion -- not the level of bipartisanship.

*See comments below