William A. Gralnick
There were two brilliant judges, brothers, both by the name of Hand. One became one of the most revered judges in the land because of his ability to write, yes write. He had the capacity to take convoluted, serpentine legal decisions and turn them into things readable,, and more importantly understandable by the reader. That was judge Learned Hand.
While this story is true I’m not so sure about the next, involving the brothers Hand. It seems more of a shaggy dog story. It goes like this, that when the two bothers discussed a case they often couldn’t come to a decision. And from the parlor one would hear….”on the one hand…on the other hand… I am in a similar situation but for the fact that I’m arguing with myself. The subject is the Filibuster, to keep it or not.
One the one hand there is good theoretical reason for the filibuster, which appears no where in our constitution. It is supposed to be one of the things that gave the Senate the moniker of the greatest deliberative body in the world. One important thing to know about the filibuster is that it is a negative tool, not a positive one. It’s designed to make it as difficult to reach the 60 vote passage mark. It allows a Senator to keep talking, theoretically forever, until one of a few things happen. One is that the other side is so disgusted and so wanting to deal with other important business that they cave. The other is that the person doing the filibuster either gets laryngitis or drops dead.
The Filibuster, as portrayed in several great movies, is great theatre. There stands the lonely Senator doing battle only with his/her voice against forces of evil. Piled around the lecturn are mounds of papers, books, notes, most anything from which the Senator can string together a few more points and keep the marathon going. It is a vocal version of the 1920’s dance contest craze. But then the gremlins got to work.
Someone got the bright idea to take the mouth out of the filibuster. This is how that works. A bill comes up to extend the protections to the rapidly disappearing spotted owl. Some anti-featherite, on a platform of reasons–not the business of the Federal government, it’s the job of the states in which the bird lives, his major constituent is allergic to owls–leaps from his chair and yells, “FILIBUSTER!” Not actually. He files a motion to open debate and then doesn’t stop. Along the way the Senator finds that all those papers, fellow Senators on his side of the aisle whispering suggestions to him, pages running back and forth with things requested from the Library of Congress or the Senators third file drawer in the second office, kitty corner from his Iron bust of Indians shooting at buffalo and soldiers shooting at Indians. That’s when the mouth went. The genius decided we can have a filibuster without Buster. Call the objection, go on to something else, and then periodically revisit for a vote. This places our poor owl teetering on a banister in the guests section upstairs “watching and a waiting.” And with no food or water.
Sound ridiculous? Frankly, it is and everyone knows it is but as they say, “power corrupts and absolute power corrupts absolutely. So, we move the the so-called “atomic solutions” whose name is scary enough to make one pause for thought. Here the party in power points a laser at the fillibuster and legislatively it goes “Poof!” and is gone. Half the Senators take a deep pull on some oxygen or run for a cigarette while our bedraggled owl sees hope in the hills. The practical result is that without the fillibuster it now takes 50 =1 votes to pass legislation. Now that makes democratic sense, no?
But wait, liberal though I am, my favorite conservative columnist, George Will has other thoughts. Called “a traditionalist” Wills, like many in the Lincoln Project feel for varying reasons that one should mess with the rules of the game unless the stakes are so high as to make it unavoidable. For instance, we might have to let our feathered friend fend for himself but pass HR 1 so that people can do what this nation was founded for–vote. Personally, except for something like prohibition I don’t like fooling with stuff Jefferson, Madison, and Adams fooled with. And that goes for the many, even most, of the hyde-bound traditions of the hoary Senate. Might there be a middle gound?
Reconciliation can be used again but the kicker is that it has to do with money issues and those money issues have to pass muster with the Sgt of Arms. That would bring a House bill to the Senate needing only 50 +1 votes to pass. The “standing filibuster” is another. This brings the buster back into filibuster. I means, as in the old days, that the objecting party much stand there and talk ’til someone gives up. It isn’t a sure bet. There are vocal chords aplenty in the Senate owned by people who talk for a living. True it will deter some. It will make the caucus more cautious about what it chooses to filibuster thereby opening some running lanes for the Democrats that otherwise might not have existed.
The crux of the decision however is the game of chicken. The Republicans, read Mitch McConnell are threatening to use every rule in the book to slow down the Senate. That phrase seems redundant but anyway, take one item, requiring a quorum vote on turning the lights on in the chamber. And so on ad nauseum. There is no question though that more of the Biden agenda would pass than would if no changes are made.
Then there is the Republican version of atomic revenge. At some point, this election cycle, the next, or the one after that the Republicans will take the helm. As they say, “Turn about is fair play.” Eventually it will even out; everyone will play by the same rules and 50 + 1 will be understood by everyone, the Senate will move faster, and son-of-a-gun the process will begin to look more like a democratic one than one from a Republic (see Federalist papers for distinctions). This leaves us with a final question. Are you a “bettin’ man?” Until that balance is, hopefully struck, how much extreme damage will be to people who don’t want it done but are trapped by the whim of the Senators. Matters such as health insurance, voting rights, conservation, ecology could virtually be wiped from the books, unless of course the bills are vetoed. That means a lot of wheel-spinning and little progress, if any at all.
If we come to that, we can just erase from the national archives, “Past is Prologue Wiliam Shakespeare/The Tempest” and replace it with, “What a Revoltin’ Development this is “(Chester A. Reilly/ The Life of Reilly” –at least from my perspective.
Back in the day “George Washington Didn’t Sleep Here” would we in piles representing different to-do talks, but today the piles are in files. If you are looking for something to entertain you while awaiting publication the reveiws for “The War of the ITchy Balls and Other Tales From Brooklyn” is out there on Amazon and B&N electronically or in paperback. Join the others who have enjoyed it so much they’ve been moved to make public comment. To my Jewish and Christian friends a zissen pesach and a blessed Easter.