US Politics: Why "Filibuster Reform" May Be the Big Issue of 2010 (Haddigan)

On Tuesday the Republican minority in the Senate prevented the proposed DISCLOSE Act, a campaign finance reform measure already passed by the House of Representatives, from proceeding to a floor vote. They failed to force an end to discussion of the Bill, losing a vote of cloture. (The Democrats had a majority of 57-41 but 60 votes are required to cut off debate.)

While the DISCLOSE Act is not, as yet, officially dead, Democrats will struggle to convince the lone Republican needed to force cloture before the Senate goes into recess, with implications for the near-future that extend far beyond the issue of campaign finance reform. Democrats, angry at this latest obstructionism in the Senate by Republicans, have begun discussing what changes they can make in Senate rules to prevent similar filibuster tactics. With the Democrats likely to have only a slender majority in the Senate after the mid-term elections, the future course of the Obama Presidencymay well rest on what reforms Democrats can make to Senate rules in the next few months.

The DISCLOSE (Democracy is Strengthened by Casting Light on Spending in Elections) Act was introduced on 21 July by Senator Charles E. Schumer of New York. Its intention is to restrict some of the electoral influence granted to corporations in the Supreme Court’s historic ruling in January in the Citizens United v. Federal Election Commission case.

In that decision the Court ruled that corporations, like individuals, can fund electoral campaigns under the First Amendment protection of political free speech. Corporations are still prohibited from donating directly to a candidate’s campaign fund or a national party committee, a restriction placed into law by the Tillman Act of 1907, but are now permitted to use "independent spending" to explicitly support a candidate.

"Independent spending" means that corporations and advocacy groups can fund political advertisements with their internal money, as long as they are independent from, or not associated with, the official campaign operations of the candidate. Corporations were formerly banned by the McCain-Feingold Act of 2002 from using their general treasury accounts to pay for television and radio advertisements that named the candidate they supported, or opposed, in the weeks before Federal elections for President or Congress.

Critics of Citizens United, largely Democrats, argue that the easing of curbs on corporations' funding of campaigns will lead to a sharp increase in the number of so-called ‘attack ads’ in the days before an election. This, opponents contend, will give a disproportionate influence on the outcome of an election to those wealthy organizations that can flood the airwaves in the critical period prior to the vote.

The DISCLOSE act attempts to weaken that political sway by requiring that all "electioneering communications" (i.e., media advertisements) include a full disclosure of who is funding the message. Democrats hope that this measure will allow the voter the chance to recognise when their vote is being "bought" by special interest groups.

The Act also wants to prevent “persons negotiating for or performing government contracts”, companies that received bail-out funds from TARP (Troubled Asset Relief Program), and “United States corporations controlled by foreign entities” from exerting undue influence over elections. The Act suggests, “Independent expenditures and electioneering communications that benefit particular candidates or elected officials or disfavor their opponents can lead to apparent and actual ingratiation, access, influence, and quid pro quo arrangements.”

As Citizens United mandates the principle of constitutional protection of political speech for corporations, there is little Congress can do to ban them from "independent expenditures and electioneering communications". But the DISCLOSE Act would limit the ‘apparent and actual ingratiation, access, influence, and quid pro quo arrangements’ of all corporations by limiting the number eligible to legally finance independently an electoral campaign.

I am no business expert, but I’ll warrant the guess that all corporations in America with the financial clout to potentially affect an electoral result could wbe precluded from electioneering communications because they are government contractors/TARP funded/foreign-controlled. The last restriction, regarding foreign corporations, was especially written with the widest possible latitude for the Supreme Court to narrow campaign financing regulations. The Act states that: “As recognized in many areas of the law, foreign ownership interests and influences are exerted in a perceptible way even when the entity is not majority-foreign-owned”, leading to the contention that the “Federal Government has broad constitutional power to protect American interests and sovereignty from foreign interference and intrusion6.”

Republicans oppose the DISCLOSE act. They are, in general, excited at the prospect of corporations and advocacy organizations financing the campaigns of Party candidates. Despite the efforts of Democrats to sway the vote of three wavering senators, and President Obama’s pleas from the Rose Garden on Monday to end the threat of “shadow groups (that) are already forming and building war chests of tens of millions of dollars to influence the fall elections”,  the Republicans managed to stall the Act by unanimously voting against cloture. With similar delaying tactics by Republicans on banking reform and the extension of unemployment insurance payments, Democrats are becoming increasingly frustrated at the use or threat of the silent filibuster by their political adversaries. As a result there is increasing support in Democrat ranks, especially among progressive activist groups, to end the tradition of a Senate filibuster and make redundant the necessity of votes for cloture.

The use of a cloture vote to end a filibuster is not a constitutional issue. Congress is granted by the Constitution the right to determine for itself the procedural rules that organize the operations of the House and Senate. Cloture was introduced in 1917, in Senate Rule XXII, to end the delaying tactics of a small number of isolationist senators who opposed the arming of merchant ships in World War I. These tactics traditionally take the form of a senator, or group of senators, commenting on issues relating (however incidentally) to the proposed Act for as long as possible, ending in no vote taking place as time has run out.

Traditionally there is no limit on the time a Senator may hold the floor to debate a law, unlike the House which introduced cut-off points in 1842. This has led to the splendid fictional spectacle of Jimmy Stewart’s filibuster in the film Mr. Smith Goes to Washington, and the rather less edifying real-life performance of Senator Strom Thurmond talking for more than 24 hours in a vain attempt to filibuster the 1957 Civil Rights Act (although he did succeed in watering down the Act’s provisions).

Senate Rule XXII of 1917 required a two-thirds majority to force a cloture vote. That number proved almost impossible to achieve, and in 1975 the majority number was reduced to 60. But, as the Democrats have found, obtaining a three-fifths majority to end a threatened filibuster is also a formidable obstacle to overcome. Hence, with an eye to the reduced majority they will command after November, Democrats are considering changing the rules of Senate procedure so that a simple majority (or a 50-50 tie broken by the vote of the Vice President) can bring debate on a proposed law to an end.

Democrats are mulling over the chances of using the constitutional option, or colloquially the "nuclear" option, for changing Senate procedures. This method of changing Senate rules was first given substance in 1979, when Senator Robert C. Byrd of West Virginia was posed with the threat of filibuster on a rule change he had proposed. Invoking the example of the first Senate meeting of 1789, Senator Byrd argued that when each new Senate gathers for the first time, it is permitted to decide what rules will govern their operations for the next two years.  Just as Congress should not oppose the right of the majority of members to decide what laws are passed, Byrd maintained, the Senate cannot prevent the will of the majority of senators from becoming the operating rules for that particular congressional session. Under this procedure, on the opening of the new Senate, using tabling motions, a simple majority can change  rules to nullify the filibuster.

Immediately after the cloture vote on the DISCLOSE Act failed, Max Baucus, a Democrat senator from Montana backed by liberal advocacy group People For the American Way, announced he would present to Congress a constitutional amendment to overturn Citizens United. There is little likelihood, despite PFAW’s claims that a June poll shows 77% support, that the amendment will get serious consideration.

More ominously for Republican supporters of Citizens United, last weekend Senate Majority Leader Harry Reid declared, to huge applause, that he would consider filibuster reform at the opening of the next Senate session. Vice President Joe Biden, who is also President of the Senate, has also spoken out against the filibuster, and if these two influential Democrats back the rule changes, it will be a brave Democrat senator who balks the party leadership and votes to continue the three-fifths majority currently needed for a vote on cloture.

The topic of filibuster reform, even if the DISCLOSE Act is eventually passed into law, is certain to provide one of the most acrimonious subjects of debate in the mid-term elections. Any electoral reform proposal that makes the American democratic system more open and participatory is sure to meet with joyous approval from the "progressive" Left. Filibuster reform would energize a constituency who are disillusioned at the lack of real change the current administration has achieved.

Conversely, Republicans will be apoplectic --- furious does not adequately convey the sense of outrage in this instance --- at any proposed rule changes. They will object not only because the measures will seriously hamper their immediate efforts to halt Democratic policy proposals, but also because filibuster reform strikes at one of the central principles of conservative belief. Conservatives argue that the Constitution explicitly, through the system of checks and balances, adopts the idea that a simple majority is not by itself an adequate recommendation for political change.

There is a long way to go, and many scenarios that may be played out, before a new Senate gathers in January. It is more than possible that Democrats will step back from making such a radical change. But considering the current resurgence in the principles of traditional conservatism, and the progressives' need to find a ‘populist’ issue to boost the interest and commitment of the electorate in November, a bitter fight over filibuster reform looms large in the coming months.