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Ed Winstead: Parliamentary Inquiry

July 16, 2013

In the age of K Street, soft money, and safe seats, it's tempting to abandon our political institutions and shout down our opponents. Here's why we shouldn't.

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Image from Flickr via thetexastribune

By Ed Winstead

When I was a kid I wore really large glasses. This was in North Carolina. Of my annual visits to the optometrist—visits that produced incrementally smaller, less humiliating frames as my capacity to feel embarrassed by them grew—I remember two things very well: First, I remember that dialectical chant common to all optometric appointments, One or [pause] two? Two or [pause] three? and the soft supplementary click of new lenses twisting into place. Second, I remember a joke my optometrist made every couple of years, whenever he’d forgotten he’d told it to me before. He would ask if I’d ever seen a one-eyed whistlin’ queer from Chapel Hill, then whistle softly, close one eye, and run his pinky finger down his cheek. I did not then, nor do I now, fully understand the joke.

In my memory, the optometrist isn’t shaded with that especially righteous contempt reserved for bigots. Maybe he should be. But his performance always seemed more eccentric than hateful. I imagine it was born less of any personal animosity than what might be called a cultural one. The invocation of Chapel Hill, a prototypical college town that’s home to the University of North Carolina, carries with it certain associations—cultural, political, even athletic—that are, in whatever combination, to be supported or opposed depending on one’s leanings. In the case of the optometrist’s joke I think the athletic was foremost in his mind (he supported an in-state rival of Carolina’s, though I can’t remember which), and the rest got dragged along in the suction of its wake. So the joke’s seeming homophobia isn’t really the point. It’s the associative leap implicit there that matters, from UNC to Chapel Hill to homosexuality and not, it should be noted, the other way around. The problem with my optometrist’s one-eyed whistler (a phrase that sounds surprisingly suggestive, divorced of context) isn’t that he’s gay, it’s that he’s from Chapel Hill. And we all know what those people can be like.

***

Of course, it’s natural to pick sides. We align ourselves with certain groups and turn our backs on others. I hope this sounds obvious. It should in the United States at least, where hyper-polarization is the order of the day in Washington and professional misologists staff entire cable news networks, paid before debates begin to already have their minds made up. Not that the talking heads can be blamed—they’re reflections of what our broader political culture has become.

So how was it that two almost identical situations—same issue, same legislation, same outcome, and only a week or so apart—produced such very different footprints in the public discourse?

Speaking of politics, you might not have heard about it, but a few days ago Republicans rammed highly restrictive abortion legislation through a state senate, legislation that was introduced at the last second and would, because of additional regulations placed on clinics and their staffs, likely force the closure of all but one provider in the state. Raucous protestors in the gallery led the Lieutenant Governor to order their removal and several arrests were made as a crowd outside the capitol shouted, “Shame, shame.” I’m referring not to Texas, where State Senator Wendy Davis’s filibuster drew major national coverage and forced a second special session of the legislature, but to North Carolina, where the bill passed easily along party lines. So how was it that two almost identical situations—same issue, same legislation,[1] same outcome, and only a week or so apart—produced such very different footprints in the public discourse?

Under the rules of North Carolina’s Senate each member may speak only twice on any issue, once for up to half an hour and then again for no more than ten minutes. That’s all the talking allowed. In other words, a Wendy Davis-style filibuster is impossible in North Carolina.

The filibuster is arguably the most effective political theater we have. So much so that it’s even made the jump to literal theater, Mr. Smith Goes to Washington being the prime example.[2] Still, like everything else these days it takes a unique set of circumstances for one to make a splash. (Remember Sen. Harry Reid’s 2003 filibuster on the right to filibuster? I thought not.) Sen. Rand Paul’s filibuster earlier this year was news because drones are a hot topic, Paul might seek the 2016 Republican presidential nomination, and filibusters in the U.S. Senate are now extremely rare.[3] So what catapulted Wendy Davis into the headlines? Ironically enough, it was the Republican membership of the Texas state senate.

A senator speaking without pause for hours on end is not very good theater, political or otherwise. Central to any performance is a conflict: two mutually exclusive interests coming to a head. It’s when someone tries to stop a senator from speaking that you have a drama. At 3:00 p.m. in Austin, four hours into Davis’s filibuster, about one thousand people were watching the Texas Tribune’s live video feed of the Senate floor. Seven hours later, as the debate over a supposed rule violation that would end the filibuster was reaching a head, that number rose to nearly sixty thousand. At midnight, when Republicans pushed for a last-second vote, it was almost two hundred thousand.

***

I’d had the feed open most of the afternoon but was only half-listening in the background, just checking to see what happened when Republicans raised occasional points of order. But by midnight, when protestors in the gallery shouted down the last-ditch vote, I was fully committed. I was ecstatic in that moment. I turned my speakers up as high as they would to go and listened to the “people’s filibuster.”

I was outraged when I heard the bill had passed, then thrilled when the vote was called invalid. And then, later, when things had calmed down and so had I, I felt regret.

Not regret for the outcome, mind you. I know that if the Republicans in both houses of a Republican-dominated legislature want a bill to pass, and a Republican governor wants that bill to pass, then the bill will, eventually, pass. And sure enough, a new special session was called and it was almost immediately through the House and through the Senate and on to Perry for signing. But I believe in the freedom of choice, believe it’s codified in the Constitution, believe it’s a moral imperative, even. So I was very happy for the victory—however temporary and symbolic—because the symbolism was important. It was still important as a rallying cry, a call to action. In that way it carried, and hopefully continues to carry, a great deal of significance. No, I don’t mind having cheered Wendy Davis on.

I felt regret because, I confess, I was having a lot of fun as midnight approached. The commotion was at its peak; senators wandered on a floor so thick with sound they almost floated. They took videos on their phones instead of voting. I was exhilarated. I wish I hadn’t been.

A “people’s filibuster” makes for very good theater, that much is obvious. But too much in this country the thing we so inaptly call debate has fallen under the umbrella of theatrics.

From a pro-choice perspective it’s easy, almost necessary, to view the “people’s filibuster” as heroic: a very literal standing-up for one’s beliefs, for one’s rights and the rights of others, whatever the consequences may be. In that sense, at least, I might agree. But it was also the latest manifestation of a very serious problem at the heart of our political system. Whether or not we agree with the motivations, or the outcome, or whatever political momentum it might generate, the disruption of voting from the gallery was wrong, and it is wrong to celebrate it.

***

A real and vocal and impassioned and spontaneous display of political will like that which took place in Austin is a beautiful thing, and much too rare. But lost somewhere in the glow of victory is this simple fact: The Republicans who were shouted down that night were elected representatives. Their constituents voted them in, and those constituents were, by extension, also silenced. That is unacceptable in an ostensibly representative government, and not to be celebrated.

The distrust that’s paralyzed Congress has also paralyzed our judgment. There is an argument to be made that the Republicans who so crassly fought Wendy Davis’s filibuster don’t respect women’s rights. The basis for that argument is in the bill, however; not in the way they tried to pass it. Calling things non-germane for the purposes of parliamentary gamesmanship is not evidence of misogyny or hate, it’s evidence of legislative majorities behaving how legislative majorities always behave, regardless of party or ideology. Examples of this are numerous, and often sort of darkly comic.[4] In this case, the decisions handed down by the chair, while demonstrating questionable common sense, were perfectly valid under the rules of the Texas Senate.

All this is what reminded me of my optometrist’s joke, so many years later. Our impulse, consciously or not, is to lump things we don’t like in with one another. “The other party” indicates “the other side of the issue” indicates “the far side of reason or morality.” That is an impulse we should fight. Support for a bad bill doesn’t make a bad person, and certainly doesn’t justify stripping someone of their right to vote. A “people’s filibuster” makes for very good theater, that much is obvious. But too much in this country the thing we so inaptly call debate has fallen under the umbrella of theatrics.

***

A test of good government might be its capacity to defang the more poisonous eccentricities of our collective nature. By that measure the American system, while far from perfect, is more apt than most. But like any bureaucracy it is resistant to change; its formulae persist and grow antiquated and meanwhile the variables shift.

One such variable: the endemic gerrymandering of districts. District lines at all levels of government are redrawn to favor one party or the other, a practice upheld by the courts but one which results in increasingly homogenized constituencies. On average, in each election cycle between 1992 and 2012 only 8 percent of races for the U.S. House of Representatives were competitive. Without competition in general elections, representatives have significantly less incentive to compromise. The resulting intransigence has crept into the Senate, too, with former House members moving up and Tea Party firebrands like Ted Cruz and Rand Paul leading primary insurgencies against more conciliatory career politicians.[5] This is to say nothing of other major shifts that have taken place in recent decades, while the infrastructure of government has remained more or less the same: the huge and growing role of lobbyists, the influx of special-interest money, and the increasing power imbalance between the Congress and the presidency, to name just a few. These changes are systemic, reflections of a broader transformation in the culture, and contribute significantly to the gridlock that’s brought Washington to a standstill.

To use the term standstill, though, might actually be putting it too generously. The year 2013 is half over and the U.S. Congress has, at the time of this writing, passed fifteen bills into law. Compare that to 1985, when Republicans controlled the presidency and Senate while Democrats held the House: the same division of government we have now, parties flipped. That divided Congress passed 240 bills. For the current Congress to catch up, an average of 2.5 bills would have to pass both houses every day they’re in session from now until Christmas.

The ballot box seems to matter less and less, and that impression we have of institutional disinterest compounds the urge to raise our voices. But in silencing these institutions we also silence ourselves, however loud we’re shouting.

To imagine the likelihood of that happening, consider this: As of July 8th, the Senate has spent 561 hours in session this year. That’s an average of 37.4 hours per law. For them to reach the 240 laws of 1985, continuing at their current pace and remaining in session twenty-four hours a day, seven days a week, would take 8,415 hours. They’d finish just in time to catch the fireworks next Fourth of July. Harry Truman must have had pretty high standards, come to think of it—what he dubbed in 1948 the “Do Nothing Congress” passed 511 laws that year.

The level of distrust that exists now between members of different political parties, or more generally between those whose philosophies don’t line up, is so high that our system has been paralyzed by it. Shouting people down is not a way to govern. It’s a mentality that is crippling our system, and while it may be good for ratings, in the end, it will be very bad for us.

How our system should be tweaked to accommodate and moderate the prevailing political culture is an open question. Such changes can have unexpected consequences—the filibuster itself is a prime example. The greater problem, though, is that we’ve lost faith in our institutions. This is the age of K Street and soft money and safe seats. The ballot box seems to matter less and less, and that impression we have of institutional disinterest compounds the urge to raise our voices. But these institutions are the only ones we’ve got. In silencing them we also silence ourselves, however loud we’re shouting. If they can’t be helped then neither can we.

But the system, all appearances to the contrary, can adjust. The U.S. Senate is seriously considering major filibuster reform, the most sweeping in almost forty years. California followed the 2010 census not with more safely gerrymandered seats but with an independent, nonpartisan commission that redrew district lines and created some of the most competitive races in the country. Bureaucracies are resistant to change but they’re not immune to it. We need to get used to the fact that these sorts of reforms don’t make for great theater. The nice thing, though, is that if they work, we won’t need them to.

1. If anything, the legislation in North Carolina was even more divisive—the abortion language wasn’t stand-alone but tacked on to a bill prohibiting the practice of Sharia law in the state.

2. Coincidentally, when Mr. Smith was released in 1939 then-Majority Leader Sen. Alben Barkley raged against its depiction of the Senate. It portrayed legislators as an “aggregation of nincompoops,” and a “bunch of crooks,” he said, an impression doubtless shared by many who watched the proceedings unfold in Texas.

3. The history of the modern filibuster in the U.S. Senate is complicated. Until the early 20th Century it was actually impossible to end one by vote. Only when the Senator speaking gave up or succumbed to exhaustion would the filibuster stop. In 1917, at the urging of President Woodrow Wilson, the Senate adopted Rule 22, which would force the end of a filibuster if two-thirds of senators present and voting approved. It was under this rule that Sen. Strom Thurmond conducted the longest filibuster in Senate history, speaking for just over 24 hours in opposition to the Civil Rights Act of 1957. In 1975, largely as a reaction to Southern-led filibusters of civil rights legislation, Democratic Majority Leader Sen. Mike Mansfield oversaw two major changes to Rule 22.

First, the number of votes required to end a filibuster was reduced from two-thirds to three-fifths, but with an important caveat. Under the original rule, the requirement was two-thirds of all senators present and voting, meaning that as long as supporters of the filibuster numbered at least a third of those physically in the chamber, cloture, which is the vote ending a filibuster, couldn’t be invoked.

Mansfield’s new rule, the three-fifths requirement, lowered the number of votes needed from 67 to 60, but it also removed the “present and voting” requirement. Any senators absent from the floor when the vote was held became, effectively, votes for the continuation of the filibuster. This means that supporters of the filibuster no longer have to sit on the floor during the filibuster, in case a vote is called because they can effectively vote against cloture without being there. The change also, paradoxically, meant that few senators would even hear the filibuster itself—ironic, as the idea was to ensure an argument has the chance to be heard. Because the leadership either has the 60 votes needed for cloture or doesn’t, there’s no need for anyone to wait around in the Senate chamber and actually hear the speech.

The second major change instituted by Mansfield was the ability to multi-track legislation, which allowed multiple bills to be up for debate on the floor at any one time. Thus, the filibustered legislation could be set aside, the filibuster assumed to be continuing, and the other business of the Senate could continue while votes were rounded up to invoke cloture on the stalled bill. This change, which allowed a filibuster to go on without anyone actually speaking on the floor, is a large part of why filibusters are so rare in the U.S. Senate today. A hold, which is essentially just the threat of a filibuster, effectively puts a halt to that bill, because nobody would have to get up and talk on the floor anyway. So filibusters can continue now much longer than any speaker could physically hold the floor, and multiple bills and nominations can simultaneously be subject to them.

Under Mansfield’s version of Rule 22 even after cloture was invoked and the filibuster ended, a mandatory 30 hours of debate time followed to ensure that senators could speak their piece, and that time can’t be avoided under the multi-tracking process (the rule was slightly altered earlier this year by Senate Democrats, so some of this no longer applies—for instance, votes on judicial nominees are no longer subject to the 30 hours of post-cloture debate, only two—but the Senate is now presently considering adjusting the rules again, so it’s hard to say where we’ll stand in a month). There being only so much floor time in a year—in 2012 the Senate spent at total of 930 hours in session—this additional post-cloture debate time was a valuable tool for holding up the Senate. The debate on the bill itself isn’t the only thing subject to filibuster, either. The motion to proceed to a bill is subject to debate, and so subject to filibuster, the cloture vote, and the ensuing 30 hours of debate. The same applies to substitute amendments, a commonly used legislative tool. When the House and Senate have passed different versions of a bill, however slight the differences, a conference committee must be called to hammer out a single version—when that happens, votes to insist on amendments, to disagree with House amendments, to authorize the presiding officer to appoint members to the conference, and to agree to the conference in the first place are all subject to filibuster and the 30 hours of post-cloture debate. It’s therefore possible for the minority, or even one lone senator, to eat up a sizeable percentage of the year’s legislative time on a single bill.

All of this huge capacity for obstruction is why so many bills grind to a halt in the Senate—where, even if the majority has the votes to invoke cloture, the minority can, if they want, eat up so much floor time that only a handful of bills could pass in a given year. So the threatened bills or appointments are, instead, set aside, and the minority doesn’t exercise its full obfuscatory power so long as the majority doesn’t, by pushing ahead regardless, make them.

So, in case you were wondering, that’s a big part of why old-fashioned filibusters are rare in the U.S. Senate today.

4. A few examples:

In 1984 Rep. Newt Gingrich and his allies in the Conservative Opportunity Society were relative newcomers in the House and C-SPAN had only been around for five years. Gingrich and other staunch conservatives were regularly giving inflammatory speeches attacking the Democratic majority on the floor, using the cameras, which were zoomed in on the member giving the speech, for publicity. Delivered as though to a crowd of sheepish colleagues, it was rare, in fact, for anyone other than the speaker to be in the chamber. But that was impossible to tell if you were watching at home. One evening Speaker Tip O’Neill, frustrated with the charade, ordered the C-SPAN cameraman to zoom out and pan the empty room, breaking House rules in the process, to embarrass the Republicans.

In 1988, a series of legislative maneuvers culminated in Republicans fleeing the Senate floor to deny the quorum necessary for a vote. Senate Majority Leader Robert Byrd was so furious that he ordered the sergeant-at-arms and Senate police to find the missing members and compel them to attend, issuing arrest warrants for the missing Republicans. The sergeant-at-arms and police began searching the hallways. There they ran into Sen. Steve Symms, but Symms, a former college football player and Marine, took off running and couldn’t be caught. Eventually the group found Sen. Bob Packwood hiding in his office after receiving a helpful tip from one of the housekeeping staff. Packwood tried to barricade the door but the police pushed their way in, then led him towards the Senate floor. When they arrived outside the chamber Packwood went entirely limp in a last-ditch effort to prevent the quorum, so the sergeant-at-arms’ men had to carry him into the Senate over their shoulders like a rug.

The 1994 elections for the California Assembly ended with a 41-39 Republican majority. One Republican was voting with the Democrats, so the vote for speakership was split 40-40. However, Richard Mountjoy, a sitting Republican member of the Assembly, had won election to the state senate the same day. The most senior member held the chair, Willie Brown, and he was a Democrat. Brown called a vote on whether or not to allow Mountjoy a vote (a motion Mountjoy himself wasn’t allowed to participate in), as he’d been elected to the Senate, though he hadn’t been sworn in. The motion passed 40-39. Shortly thereafter Brown was elected speaker, also by a margin of 40-39, setting off a series of scandals that rolled on for another year.

5. Many of these hardline candidates benefit from closed primaries, in which only members of the party may vote—barring independents, for example, from voting in a race does nothing to encourage moderation.

Ed Winstead is the associate editor of Guernica Daily. His work has also appeared in The Rumpus, The Miami Rail, and The American Reader.

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