RIGHT TRACK - WRONG TRACK: It's All About Gridlock

I heard a respected political pundit the other day expressing confusion over the fact that the latest "Right Trak - Wrong Track" poll indicating widespread belief that the country was on the wrong track, in spite of the indications that the President's approval ratings continue to rank over 50% -- which is always a milestone for any President.

"Uhmmm," I said to myself, "it make perfect sense to me. I wonder why it's not obvious to him (the pundit)."

I decided to do a little research and found a recent July 17, 2016, article reporting on this perceived conundrum. According to the report on the lates Wall Street Journal/NBC News poll. . . 

"Some 73% in the new survey say things have gone off-course, with only 18% saying the nation is headed in the right direction. . . For the third straight month, 51% of voters say they approve of President Barack Obama’s job performance, his highest marks sincetaking the oath of office for a second time, in early 2013."

"Together, the two indicators mark a rare occurrence: Usually presidents and their party take the blame when Americans are unhappy. But while the nation is unified in dissatisfaction, many don’t see the party in power as its cause." July17, 2016 WSJ

The latest Bloomberg Politics Poll conducted by Selzer & Company, Aug. 5-8, 2016, indicates 68% wrong trak; 25% right direction; 7% unsure. During the first half of August, President Obama's approval rating has averaged 53.5% according to 4 separate polls.

I'm a political wonk so I watch and read a lot about the current Presidential campaign. I hear Donald Trump and his Republican surrogates constantly emphasizing the fact that nearly three-fourths of American's think the contry is on the wrong track. Thus, they imply -- it is obvious the people want a change in leadership at the top. When they're promoting their party or Presidential nominee, they rarely point out President Obama's high approval ratings. 

But wait a minute, why are people so dissatisfied with the direction of the country if the President's approval ratings are so high? Well, you have to look at couple of other poll numbers.

How about this one -- 14% approve of the job Congress is doing; 78% disapprove; and 9% are unsure. Monmouth U. RV poll 8/4/16. The highest figure this year for Congressional approval was 19%. Further, Democrats in Congress garnered a modest 37% approval while Republicans saw only a 20% approval.

It seems clear to me that people are not upset with the direction of the country because of President Obama – why would his approval rating be over 50%?. It doesn't even seem to be a highly partisan dissatisfaction – 37% approval is only moderately better than 20%, and not really anything to be terribly proud of. What’s so revealing is the combined Democrat-Republican rating of 14%.

You should be hearing bells and whistles about now. It’s not the leadership at the top that has the country so upset – it’s because of the complete and utter inaction and dysfunction in the U.S. Congress – it’s called Congressional gridlock and it is the root of the publics’ belief that the country is headed in the wrong direction (and that's what this blog is all about).

Timely related article in Real Clear Politics: "Will Right-Track/Wrong-Direction Numbers Help Trump?", By David Byler, August 18, 2016. Also, check out the revealing comments.

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.

vice.president@whitehouse.gov

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 and our Constitution were based on 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.

I refer you to my blog – J.P. McJefferson: Exposing the Underpinnings of a Broken Government – for postings, commentary, tools, resources and court cases relating to broken government.

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

Comment: "How American Politics Went Insane"

(comment in response to Jonathan Rauch's article published in The Atlantic, July/August, 2016 issue -- "How American Politics Went Insane")

This is an excellent article that focuses on many of the underlying reasons that have led to the sad state of our 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.

 

The deep-rooted underpinnings of this increased dysfunction are Congressional rules and procedures all designed to frustrate the concept of majority rule -- abuses of the filibuster process in the Senate (silent filibuster & extensive use); senatorial holds; the “Hastert rule” in the House; riders & unrelated amendments, etc. Not only do they grind decision making to a standstill, but they allow for increased leverage for lobbyists and moneyed influences.

 

These are the "demons of democracy" that, as this article indicates have led to, "the general public’s reflexive, unreasoning hostility to politicians and the process of politics. Neurotic hatred of the political class. . ." 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."

 

But, solutions are at hand. I agree with the article which indicates, "Restoring the earmarks that help grease legislative success requires nothing more than a change in congressional rules. . ." This is true and every Washington politician and political insider knows it. Yet reforms to correct the process are few and far between because both parties use the "demons" to their advantage to manipulate political outcomes.

 

The public, the media, political reformers and the few remaining "statesmen" in Congress must focus their efforts like a laser beam on the "demons" and press for changes to restore majority rule. As I point out in one of my blog posts, you have to trust the majority rule system as it may not always deliver the results that you want -- if decisions are really bad, the majority corrects itself by changing direction -- if you can't live with majority rule then you should probably seek another alternative, somewhere else.

J.P. McJefferson, "Exposing the Underpinnings of a Broken Government."

Unrelated Amendments & Riders – Tricks of the Political Trade

(provided as a comment on H.R.2578 on the excellent website 4US.com)

H.R.2578 is a good example of legislative and political manipulation designed to confuse the public and hide important issue votes -- the practice of adding unrelated amendments, indirectly related and riders to bills under consideration. It is a ploy designed to deceive the public, sneak through legislation and make it difficult to hold legislators accountable. You can see here on the 4US.com website, the important significance of some of the amendments to this bill that were considered and voted on are not revealed and you cannot tell how your Members voted. Unrelated amendments are a significant contributor to Congressional gridlock and broken government and should be eliminated.

The primary purpose of this bill was to provide appropriations to the Department of Commerce, the Department of Justice (DOJ), science agencies, and several related agencies. Yet four, highly controversial amendments relating to gun regulations were offered and defeated in separate and very close votes.

See: Senate rejects all gun bills - Democrats and Republicans took turns defeating dueling proposals on background checks and efforts to prevent terrorists from buying firearms. June 20, 2016

See also: all details for H.R.2578 - Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016, including amendments and links to roll call votes on the Congress.gov website.

How should Congress react to the Orlando shooting?

(Response to a question posted on the Quora website)

In a better world, Congress should react to the Orlando shooting by doing something close to the wishes of the majority American public and in their best interest in terms of their public safety and security. Unfortunately, the Congressional action we have seen in reaction to Orlando, Sandy Hook and countless others, is the most appalling example of gridlock and a broken government – Congress did nothing; again, and again, and again.

According to a CNN/ORC Poll. June 16-19, 2016. N=1,001 adults nationwide. Margin of error ± 3.

• 55% favor stricter gun control laws
• 54% favor an outright ban on “assault-type guns
• 54% favor a ban on high-capacity or extended ammunition clips
• 92% favor expanded background checks
• 87 % favor preventing certain people, such as convicted felons or people with mental health problems, from owning guns
• 85% favor preventing people who are on the U.S. government's Terrorist Watchlist or no-fly list from owning guns

So, the American public clearly wants expanded controls and regulations of guns and people who buy them; however, the same poll also shows us that 90% of the public opposes preventing all Americans from owning guns. So, the public does not want the government to “take our guns away”, and based on public opinion, it seems to be only a fantasy conspiracy theory that such an action would ever be undertaken.

Despite the overwhelming public will; despite an old fashion standing Senate filibuster; despite an unprecedented 26-hour sit-in by House Democrats – Congress refused to do anything with respect to the Orlando shooting. If Congress didn’t act following the slaughter of twenty, 6 and 7 year olds at Sandy Hook; should we be surprised that they didn’t react to a massacre of 49 innocent souls in an Orlando nightclub?

While it may be easy to blame the National Rifle Association (NRA) and their money and lobbyists, we need to look deeper at what allows Congress to blatantly disregard public opinion and give so much power to a minority interest. It’s not just the NRA and it’s not just the gun issue. It’s about a host of issues and the inability of Congress to address difficult issues and take action.

It’s the result of a complex labyrinth of House and Senate rules (formal and informal) and procedures that are designed to frustrate the Founding Father’s cornerstone of democracy – “majority rule.” Thomas Jefferson, a staunch advocate of majority rule said: "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." --Thomas Jefferson to Annapolis Citizens, 1809. ME 16:337

A scary thought for sure; and when it’s boiled down, the lack of majority rule is the underlying reason for most of the public unrest that is characterized as broken, dysfunctional government and gridlock. When you prevent majority rule you allow a minority to control decisions, as Alexander Hamilton pointed out, “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision). . .” Federalist Paper #22.

Yes, we have a very divided electorate which seems to have grown more divided in recent years. But, the move to prevent majority rule has also made it more difficult to craft bipartisan solutions.

In the House of Representatives a measure cannot even be brought to the Floor unless a majority of the majority party (Republicans) agrees – the so-called “Hastart Rule”. Thus, based on the current numbers of Republican and Democrats in the House, all major issues are controlled by 29% of the members.

In the Senate, the old, standing filibuster has evolved into the new “silent” filibuster, where a Member simply says he will filibuster and action which then automatically requires a supermajority of 60 to bring an action to a vote. And, if that’s not enough, there is now an overused procedure called a “Senatorial hold” which allows any individual Senator to bring any action to a halt by placing a “hold” on it until certain demands are met.

These are just some of the procedural “tricks” that are used to prevent majority rule and they are used by both Democrats and Republicans. The sad part is that all Senators and Representatives know these procedures are resulting in the political gridlock that the public resents, but they refuse to eliminate them. Both parties use them to prevent majority rule, avoid responsibility, and create the gridlock which they can use as an excuse for their inaction.

The media, responsible government reform organizations, and the few ethical Members of the House and Senate (we used to call them “statesmen”) need to focus more attention on these, modern-day “demons of democracy” and the ease by which they could be eliminated if the right public pressure were applied.

Reasonable gun control regulations could have been implemented years ago, and many other important issues could have been addressed if these destructive mechanisms were scrubbed or seriously revised. And, who knows how many lives might have been saved.

Some Reddit Discussions On Filibuster & Broken Government

Let's discuss filibuster reform. What would changes in procedure look like? from PoliticalDiscussion

Landmark Senate Vote Limits Filibusters from politics

Why hasn't the Senate reformed the filibuster system? from NeutralPolitics

The Senate and the filibuster, is there a way to preserve minority rights and a functional legislative body in todays political environment? from NeutralPolitics

Senate reformers are talking about new filibuster rules that'd require minority senators to keep talking during the entire length of their filibuster - No more nonsense about just announcing a filibuster & then heading out for drinks. from politics

What Is Broken Government & What Do We Really Want?

Donald Trump & Bernie Sanders have both done a good thing in publicizing what we already knew -- "The system is rigged." It's good that the criticism has come from both sides of the political aisle. President Obama should do more to explain the rigged system to the American public in his remaining days while he is not encumbered and tainted by the need to be reelected. The Trump solution is just elect him and everything will be okay. Bernie's solution is to elect him and there will be a massive public revolution that will implement all of his ideas. Unfortunately, both are dubious, shallow and naive at best.

The point is, it doesn't matter who is elected because the system is rigged. The President elected in 2016, will not be able to achieve their vision for the country or the vision of their many followers. The result will be a lot of frustration and disappointment and more cries of broken government. Carried to the extreme, over time, the electorate will simply become so disenchanted and discouraged with the system that they will feel it is meaningless to vote and participate.

As I pointed out in my very first post – every U.S. Representative & Senator, as well as state and local government officials, lobbyist and political insiders know the reason that there is gridlock in Washington, DC and elsewhere -- they also know how to fix it -- but they won't.

So, we all agree, the systems is broken and rigged

We have to ask the question -- What's really "broken"? You might say it's the crooked politicians. Too much money in politics. Big business and big banks always get their way. Too many lobbyist and special interest, voting rights, etc. Then, you can get down to the more structural problems like I discuss all the time -- gerrymandering, campaign financing, misuse of the filibuster, Senatorial "holds", the “Hastert rule”, unrelated "riders", etc.

But, underlying it all is a simple, basic concept -- majority rule. And all of the items mentioned above are basically designed to prevent or frustrate the concept of majority rule.

So, what's the goal? What's the end game to fixing a broken, rigged government? It's to make the politicians listen and do what the majority wants -- Right? Well, before we go too far we should have a little discussion about -- "Being careful what you wish for."

We have to do a little self examination here. You see, we already have a system that is "rigged" -- where majority doesn't rule. So, what we're seeking is a "majority rule" system. Okay, so what if the majority doesn't agree with you personally? Are you ready to suck it up and live with the "majority rule"?

You see, that's the hard part. . . at any given point in time. . . sometimes, the majority opinion won't necessarily agree with yours. So what are you going to do? Now what's wrong with the system? You want a system that always delivers the result you want? Sorry, that's not the way it works.

So, here's the caveat -- over time, the majority system corrects itself. At least it corrects itself to the majority at that time. Sometimes the majority gets fooled or needs to experience a certain policy or ideology. Then, if the vision does not turn into reality, the majority corrects itself by changing direction. You have to trust the majority system. And, if you can't live with majority rule then you should probably seek another alternative, somewhere else.

Okay, now we know what we want -- a majority rule system; but, wait a minute. A majority of what? A majority of the whole population? -- families? registered voters? persons over 18? All the people, or just those that care? It's worth thinking about, but for discussion sake, I'm going to assume that we are talking about a majority of people over 18 that are concerned or care enough to participate.

It all sounds a little overwhelming. So what's the next step in solving the problem -- getting to a majority rule system. We need a plan. We need some tools. We need solutions.

In a future post I'll make some suggestions on how we get from here to there.

P.S. The concept of majority rule has been discussed and debated forever. A few quotes from Thomas Jefferson are instructive:

"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." --Thomas Jefferson to Annapolis Citizens, 1809. ME 16:337

"Every man, and every body of men on earth, possesses the right of self-government. They receive it with their being from the hand of nature. Individuals exercise it by their single will; collections of men by that of their majority; for the law of the majority is the natural law of every society of men." --Thomas Jefferson: Opinion on Residence Bill, 1790. ME 3:60

"I subscribe to the principle, that the will of the majority honestly expressed should give law." --Thomas Jefferson: The Anas, 1793. ME 1:332

"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." --Thomas Jefferson: Address to the Cherokee Nation, 1809. ME 16:456

"We are sensible of the duty and expediency of submitting our opinions to the will of the majority, and can wait with patience till they get right if they happen to be at any time wrong." --Thomas Jefferson to John Breckenridge, 1800.

(click here for additional TJ quotes on majority rule)

And as Alexander Hamilton pointed out in the Federalist Paper #22:

“To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” [i.e. “minority rule’]

Citizens Speak Out On Broken Government & Citizen Involvement

Some interesting & insightful commentary on a broken government and citizen participation by some mostly interesting & insightful citizens. Thanks to Quora, the website for answering questions. It's a lot to read but if your interested it will open your eyes. I have some answers to the question which I will post later.  

It's an interesting question to ask in light of Bernie Sanders' promises for a citizens' political revolution to achieve free college, universial free health care, $15 dollar minimum wage, breaking up the Big Banks, overturning Citizens' United, higher taxes on the rich; overturning TPP; criminal justice reform, etc.

What will it take, to get citizens involved, and stay involved in the Congressional process once the elections are over?

(click here)

President Obama Participates in a Conversation about the Supreme Court

For the first time in recent memory, Senate Republicans are flatly refusing to consider a Supreme Court nomination because they hope another party will win the next election. It isn't clear whether the Senate will ultimately deny the President's nominee a hearing or a vote for the entire year, so before positions harden, this is a good time for all of us to step back and think about the broader costs of this potential action to our judiciary.

The President talks about filibuster, gerrymandering, broken government and the Supreme Court nominee on April 7, 2016.

Gridlock Games: "If you can do it, so can I. . ."

Back and forth between the Majority and Minority "Leaders" of the U.S. Senate on how they rationalize undermining the Constitution on the requirements to act on their "advise and consent" responsibilities. It's gamesmanship at the highest level with the highest stakes -- the future of the country.

It's not just one party -- it's both. They thrive and continue the games as long as the American public will allow it. The public is feed up and that's why the Republican party is unraveling with the popularity of Donald Trump; and, the mainstream Democrats are amazed at the popularity of Bernie Sanders.

The games must stop if we are to preserve our democracy and maintain a functioning government. The problems will not be solved from within -- it demands a massive, bipartisan public campaign for reform. #DoYourJob

 

Harry Reid: 'We Have Never Held Up a Supreme Court Nomination'
SUN, MAR 20: Senate Minority Leader Harry Reid  (D-NV) on lame duck sessions and Supreme Court nominations.

 

Senate Majority Leader Mitch McConnell (R-KY) joins Meet the Press to discuss Donald Trump and the battle in the Senate over whether to hold hearings for Pres. Obama's Supreme Court nominee.

Looking Back: A Brief Perspective On Gridlock & Broken Government

While doing some research on gridlock and broken government, I came across an interesting Senate Hearing held on March 14, 2012. The hearing was called “Raising the Bar for Congress: Reform Proposals for the 21st Century.” The hearing was held by the Senate Committee on Homeland Security & Governmental Affairs, Chaired by then Senators Joe Lieberman (I-CT) with minority chair Olympia Snowe (R-ME). At the time, both had announced their intention to retire. [Link to the hearing and webcast below]

Most interesting was the testimony from Donald R. Wolfensberger, then with the Woodrow Wilson Center & Bipartisan Policy Center, who chronicled his 50 years of working on congressional reform efforts dating back to 1965.

Reflecting on his experience and the Congress in 2012, he said:

“For in looking back on those years it seems that no matter how much Congress reformed itself to adapt to changing times and public pressures, the more it has seemed to slip backwards into more difficult times and circumstances for which no measure of change would seem adequate. Notwithstanding occasional bursts of reform and legislative productivity, Congress seems to be stuck in a perpetual state of popular disfavor because of perceived gridlock and partisan bickering. Today Congress’s job approval rating hovers somewhere between 9 and 13 percent—the worst I’ve ever seen it. The people are reacting to an institution they see as unable to tackle even its most basic responsibilities.”

[Mar 9, 2016: In the U.S., 13% approve of the job Congress is doing, in line with approval ratings ranging from 11% to 16% since August. The current rating is just four percentage points above the record low of 9% recorded in November 2013.]

It all sounds very familiar and, unfortunately, has become even worse in the last 4 years. Mr. Wolfensberger offered a list of ten guiding principles or objectives for use in shaping worthwhile reforms:

·        End the gridlock;

·        End the bitter partisanship and incivility;

·        Restore public confidence in the institution by making it more responsive to national problems;

·        Strengthen the legislative branch vis-à-vis the executive branch;

·        Better balance committee and party leadership powers;

·        Restore the regular order of fairness and deliberation;

·        Make Congress more efficient and productive;

·        Address problems that really matter versus those that only have a political purpose;

·        Enhance Congress’s oversight role; and

·        Better inform the public about the activities of their government.

This blog focuses on the last principle do to the necessity of having an informed public to effectuate change. It is exceedingly difficult to achieve change from within the House or Senate because, as we have discussed previously, both political parties benefit from the chaos they have created and use it to their advantage to move their own political agenda.

Intense bipartisan political pressure, combined with assistance from a few remaining Congressional statesmen and outside political leaders with the highest integrity may be the only means of achieving reform. In an upcoming post, I will discuss the urgent role of President Barack Obama in addressing the issue of Congressional gridlock.

---

Raising the Bar for Congress: Reform Proposals for the 21st Century; Committee on Homeland Security and Governmental Affairs; March 14, 2012 10:00AM

#DoYourJob

The U.S. Senate (DEMs & GOP) just doesn't get it! The argument that the Constitution doesn't really require the Senate to act on advise and consent is obviously false. Likewise, the argument that DEMs did it, and would do it again if the tables were turned, is silly and childish. 

This kind of "tit for tat" behavior is what has demeaned the sometimes called "worlds greatest deliberative body" to the likes of a school yard brawl. It is precisely the reason that has led to rise in popularity of Donald Trump and Bernie Sanders -- both sides want action for their positions -- but nothing happens because of gummed up, arcane rules and procedures that prevent majority rule and discourage bipartisan action on anything. Unfortunately, the election of either Trump or Sanders is not going to fix the problem and their lofty promises for change will end up in the typical trash can of political rhetoric.

The Constitution and the Founders certainly envisioned the Senate to provide an "advise and consent" role to appointments, treaties, etc. -- otherwise they wouldn't have included it. The Senate also has specific rules on how it carries out its advise and consent responsibilities -- Judiciary Committee hearing(s) and referral to the full Senate for a vote. The only argument seems to be whether they can delay their responsibilities indefinitely.

Taken to the extreme, the idea that the Senate does not have to provide an "advise and consent" role on appointments, treaties, etc would bring government to its knees and deny the public its right to a functioning government. In effect, it would instill in the Senate and extreme power over the Executive Branch not envisioned in the intricate system of "checks and balances" included in the Constitution.

Further, the "Senate" is a body of 100 members. Even if for arguments sake, the Constitution envisioned that the Senate did not have to exercise an "advise and consent" role, the "Senate" as a body has not expressed its decision to take this extreme course of refusing to act. So far as I know, this is simply the individual decision of the Majority Leader Mitch McConnell. Certainly, the Constitution and Founders did not envision giving such extreme power to one individual -- not even the President of the United States and certainly not the Senate Majority Leader.

If the "Senate" is going to take such extreme action it should at least put a roll call vote on record that it is the decision of the body and not the decision of one lone Senator.

Next, we must ask, if the Senate does not act in accordance with the Constitution, what public recourse is available to challenge or correct their action. Most scholars say the Senators are immune to legal action (even for doing nothing) and the public lacks standing to sue.

Watch This Senate Hearing & You Will See Why The U.S. Senate Is Broken

If you really want to see a graphic example of how the esteemed, august body of the U.S. Senate works and why it is broken you need to force yourself to watch this March 10, 2016, hearing of the Senate Judiciary Committee as they debate whether or not to hold a Constitutionally required hearing to consider a nominee of the President to fulfill a vacancy on the U.S. Supreme Court in the remaining term of President Obama.

What is important is to note how the Republicans rationalize there decision not to hold a hearing based on the practices of Democrats in the past on previous similar situations. The Democrats make there stand based on the Constitution and the requirements of the President to make an appointment and the Senate to "advise and consent" by holding a hearing on the nomination and then make a recommendation and forward it to the full Senate for a vote.

There is a constant theme that if the Democrats were in power they would do the same thing and discussions of how when the Democrats were in power they altered and bent the rules to suit their purposes -- so we (Republicans) can do it too.

This is the critical dilemma and the reason the system is broken. It is also the reason the Senators -- Democrats and Republicans -- cannot solve the problem. Laws, rules, procedures, policies, history -- and the Constitution itself -- are interpreted, altered and contorted to fit the party in power.

This is what the Senate Judiciary Committee website indicates is its responsibility:

• "When a vacancy occurs on the Supreme Court, the President of the United States is given the authority, under Article II of the United States Constitution, to nominate a person to fill the vacancy.  The nomination is referred to the United States Senate, where the Senate Judiciary Committee holds a hearing where the nominee provides testimony and responds to questions from members of the panel.  Traditionally, the Committee refers the nomination to the full Senate for consideration." [https://www.judiciary.senate.gov/nominations/supreme-court]

The Gold Standard For Gridlock: "Senatorial Holds"

I have this vision of a cartoon with a giant Rube Goldberg-like machine with lots of valves and spinning wheels, etc. labeled "Government." Standing next to this giant machine is a tiny little figure with a devils cap and the back of his shirt is marked Senator. He has a long pitchfork in his hand and is about to stick it into one of the spinning wheels. The caption reads "Senator working."

Seriously, if one wanted to design a mechanism to stop the wheels of government, there could be no better tool than the infamous "Senatorial Hold." And, it gets better (or worse, depending on your perspective) -- there are "regular holds"; "secret holds"; "tag-team holds"; "multiple holds"; and more I'm sure.

The concept is really simple -- any one of the 100 Senators in the U.S. Senate can place a "hold" on a piece of legislation moving through the body -- the effect is that the legislation is stopped dead in its tracks. The Washington Post in a 2010 opinion piece described the secret hold this way: "OF ALL THE maddening practices that clog the arteries of the national legislature, the most infuriating may be the Senate institution known as the 'secret hold'. . .a single senator can stop action -- on a piece of legislation or a pending nomination -- by placing a 'hold.' No reason needs to be given, though generally one is, often having nothing to do with the merits of the underlying issue."

Certainly, the Constitutional Founders did not envision this tool to gum up the works of democracy. Had the concept been a part of the original Constitution discussion and papers, we would likely still be under British rule. The Senate, derived from the senatus, Latin for the "council of elders", the august body intended to be the wise statesmen; sometimes called the "worlds greatest deliberative body." Well, perhaps once upon a time in a land far away; but, fast forward to 2016 where political polarization is at an all time high -- where deceit, dishonesty, inflammatory rhetoric and devious manipulation are commonplace. Now, hand these "wise, elderly statesmen" the tool, known as the "hold" and imagine the consequences.

Ironically, the Senate hold originally was designed to speed up the business of the Senate. The theory was that if the Senate Majority Leader knew in advance of a Senator's intent, they could better schdule the business of the Senate if they were aware that a Senator(s) were going to object to an item (e.g. legislation, appointment, etc.). Also, as a courtesy to a Senator having a concern with an item, it would allow them additional time to review the matter.

Ultimately, the decision to honor a Hold request, and for how long, rests with the Majority Leader. However, Holds, like filibusters, can be defeated through a successful cloture motion requiring 60 votes (supermajority of 3/5). If the leadership brings up measures despite holds, everything is delayed due to the need for cloture votes. Thus, as with the filibuster (which has now become commonplace) a minority party can use these tactics to frustrate and delay Senate business and circumvent the the axiom of "majority rules" which most of us learned in kindergarten.

As is discussed in research and articles regarding the Hold process, the general public does not tend to know or pay much attention to the procedure, but scholars, journalists, political scientists, and elected politicians know it well. It's interesting that you don't hear a lot of public discussion of this incredibly disruptive mechanism that undermines the Constitution, democracy itself and the concept of majority rule.

You hear volumes about government gridlock, delays, and dysfunction; but, hardly a word about Senatorial Holds. You hear politicians bemoaning the fact that government is broken and promising to fix it and work toward bipartisan solutions. For sure, at least five of the six remaining Presidential contenders know very well about the Senatorial Hold process and how destructive it is to the democratic process -- four of them are or have been Senators and one was a House member who certainly knows how things get bottled up in the Senate. Donald Trump, not being a Washington insider, may not understand or know the process, but would quickly learn that deals in the U.S. Senate aren't like deals in the private sector.

So, you ask: Why doesn't someone propose fixing it? It's not a law. It's not a rule. It's simply an informal process in the U.S. Senate that by all rights seems to be illegal by violating Constitutional expectations. Why isn’t the public outraged? Why don’t responsible Senators expose this practice and propose solutions. Why doesn’t the President ever talk about it? He was a Senator. He’s not running for office – now would be a good time.

Well the public isn’t outraged because they generally don’t know about it. And, the responsible political leaders don’t talk about it much because they are constrained by an unwritten political phenomenon known as power and the idiom: “whose ox is being gored.”

Simply put – the Senatorial Hold, like the filibuster, can be very advantageous to either party in advancing political agendas depending on who has the majority power or control in the Senate, the House or the Presidency. It essentially gives any one Senator, no matter what their party, enormous power to block, stall, or frustrate any legislative matter – hardly a Constitutionally authorized procedure.

To be fair, there have been quite a few modest, yet complicated, attempts to put some constraints on the process. Way back in 1983, there was actually a Senate appointed study group that recommended that the process be abolished. [See reference #5 below]. That was when there was actually a bit of decorum in the esteemed body.

In 2007, President George W. Bush signed into law the Honest Leadership and Open Government Act (S. 1). Section 512 of Title V of the law (P.L. 110-81) specifically dealt with the issue of secret holds. While it sounds good, Section 512 is neither a Senate rules change nor a standing order of the Senate, and merely specifies the exact steps for making an anonymous hold public. It is generally recognized as not being effective in ending secret holds.

In 2010, Senator Claire McCaskill as well as Senators Sheldon Whitehouse, Mark Warner, and other Members, joined the Senators Wyden and Grassley in an effort to end secret holds. It basically failed and other attempts in 2011 similarly resulted in Senators retaining largely the same power to anonymously stall action.

Frankly, most of the proposed constraints are feeble and really do not undermine the destructive nature of the procedure. So what began as an informal courtesy to Senators in the late 1950s under the majority leadership of Lyndon B. Johnson, as a way for Senators to make routine requests regarding the Senate’s schedule, has turned into a potent extra-parliamentary practice.

Washington gridlock and the resulting public displeasure with the broken system has its roots in the Senatorial Hold process. The process must be radically changed or eliminated if gridlock is going to be addressed. The result is severe, the public is denied its right to see the policies of an elected President – Democrat, Republican or Independent – carried out on a level playing field in accordance with the Constitution. It’s unconstitutional in that it provides an extreme grant of power to any individual Senator, far beyond anything envisioned by the Founders or included in the Constitution.

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1. LET'S SHED LIGHT ON A SENATE SECRET, Senators Ron Wyden & Chuck Grassley, November 17, 1997

2. “Holds” in the Senate, Congressional Research Service, March 19, 2015

3. Senate Holds, from Wikipedia

4. Senate Holds, from Open Congress

5. Proposals to Reform “Holds” in the Senate, CRS Report RL31685, August 31, 2011