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After-effects of the Hagel fight

By James Fallows

1) The Senate discovers the Constitution. Barring some development no one now anticipates, former Sen. Chuck Hagel (R-Neb.) will become the next secretary of defense. We know that because Hagel opponents like John McCain and others have magnanimously said that they will "allow" an up-or-down vote on his nomination, rather than subjecting it to a filibuster. Here is how another Republican put it:

Senator Roy Blunt of Missouri"For a cabinet office, I think 51 votes is generally considered the right standard for the Senate to set, and at that level, I think he makes it," Senator Roy Blunt of Missouri [right], a member of the Republican leadership, said Friday on Fox News, even as he announced his opposition to Mr. Hagel.

Why is this interesting? Because "at that level" could also be described as "what the Constitution says."* For those joining us late:

  • A hugely disproportionate share** of the filibusters in the two centuries-plus of America's history as a republic have happened since 2006, when the Democrats regained control of the Senate and the Republican minority, under Mitch McConnell, made the filibuster a routine blocking technique;
  • Before that time, most nominations and legislation required a 51-vote majority for approval, with rare exceptions requiring 60 votes to break a filibuster. Since then, 60 votes have been required for almost everything;
  • This defacto rewriting of the Constitution is ratified each time a news organisation says (as reporters from both NPR and MSNBC did during this past week) that a certain measure lacks "the 60 votes required for passage," and it is reflected by "concessions" like Senator Blunt's, above. Pretty soon no one will remember that a "simple" majority vote, far from being some exceptional bipartisan allowance for cabinet appointments, is how the system was designed — and had operated through its first two centuries;
  • In fact, in the entirety of American history, no Cabinet nomination has ever been filibustered. As a marker of how far we've come, most media reports treated the Blunt and McCain announcements as "news" — rather than underscoring that the very idea of a filibuster would have been a historic first.

2) Walter Pincus states the plain truth. As I argued before, no one came out looking good after Hagel's day in front of the Senate Armed Services Committee last week. But the veteran Walter Pincus of the Washington Post highlights a particularly awkward reality:

There were several obvious answers on Thursday when Sen. Lindsey O. Graham (R-S.C.) asked Defense Secretary-designate Chuck Hagel to "name one person, in your opinion, who is intimidated by the Israeli lobby in the United States Senate" during the Senate Armed Services Committee confirmation hearing.

One answer could have been "the two of us": Graham, for example, by asking such a silly gotcha question, and Hagel for not standing up for his past words that reflect the belief of many who have watched the Senate over the years.

[...]

When Graham asked Hagel to "name one dumb thing we've been goaded into doing because of the pressure from the Israeli or Jewish lobby," the answer should have been "a good part of today's eight-hour hearing."

[...]

Thursday's hearing was a perfect illustration of why the public has such a low opinion of Congress and why Americans should be concerned that their legislative branch often seems no longer to be playing a serious role in government.

Of course, Hagel would have been crazy to say any of those things. The goal of a witness in a confirmation hearing is not to score debating points with Senators but instead to act cooperative as they perform in front of the cameras — and just get the process over with. But if Hagel had been willing to go down in flames, he could with complete justification have said what Pincus suggests.

In case you haven't seen it, at Time online Brandon Friedman has this chart of senators' questions about Israel and about Afghanistan, where some 65,000+ U.S. troops are still in combat. As mentioned earlier, a chart contrasting mentions of Iran vs. those of Afghanistan would have shown a similar skew.

SenArmedServQuestions.png


* Article II, section 2, on presidential powers:

The President ... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That is: The Constitution sets out certain exceptional circumstances, like approval of treaties, for which more than a simple majority vote is required. For the rest, majority rule is assumed, within all the other checks-and-balances created by the Constitution. You already knew that — but it would be natural to have forgotten it in recent years.

** Counting systems vary, so I will rephrase this more cautiously: The filibuster and threat of filibuster have been used far more frequently in the past six years than ever before, and by a vast margin. For an illustrative graph see here with this apt summary:

The issue today isn't that we see 50, or 100, or 150 filibusters. It's that the filibuster is a constant where it used to be a rarity. Indeed, it shouldn't even be called "the filibuster": It has nothing to do with talking, or holding the floor. It should be called the 60-vote requirement. It applies to everything now even when the minority does not specifically choose to invoke it. There are no longer, to my knowledge, categories of bills that don't get filibustered because such things are simply not done, though there are bills that the minority chooses not to invoke their 60-vote option on.


This post was originally published at The Atlantic

11 February 2013

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