The Legacy of Dirty Harry and the Reid Rule on Senate Filibusters

A legacy of former Senate Majority Leader  Harry Reid (D-NV) was the effective elimination of the confirmation filibuster.  

Under the Constitution, it is the Senate's duty to confirm Executive and Judicial Branch appointments.  Senate rules allowed for confirmations with mere majorities, but needed to obtain 60 votes to cut off debate (Cloture) and preclude a filibuster.  The Cloture vote was intended to prevent endless obstructionism while still giving the minority some say in the proceedings of the Upper Chamber of Congress.

Needing to get enough votes for cloture was an incentive for Republicans to select more moderate appointees which required Senate consent.  But such Senate niceties stopped political steamrolling by Majorities who wished to exercise their unadulterated will.

When the Obama Administration sought to pack the Court of Appeals for DC (aka the DC Circuit), which is the court of authority for regulatory bodies, it ran into trouble when its candidates might not have received the requisite support for a Cloture Vote.  So then Senate Majority Leader Harry Reid, exercised "The Nuclear Option".  Exercising the Nuclear Option had been hotly debated in the preceding decade, but then Senate Majority Leader  Bill Frist (R-TN) opted not to circumvent tradition. 

Through Parliamentary legerdemain, Reid established a precedent in which he said that all judicial nominees, save Justices of the Supreme Court, would be considered on majority votes and did not have to pass the Cloture Vote threshold.  

The Reid Rule was great when one's party is in control of the Senate and the White House. But in 2017, President Donald Trump will occupy the White House and Republicans have a two seat majority in the Senate.  Incoming Senate Minority Leader Chuck Schumer thinks that he can stymie the Trump Administration through the advice and consent clause as well as any Supreme Court nominations which do not represent progressive Democrat values.  However, Schumer may well rue the Reid rule legacy from Dirty Harry Reid. 

Senator Ted Cruz (R-TX) and Salem Radio host Hugh Hewitt had an informative colloquy on the Reid Rule.

 Republicans may not moderate their choices for positions which need to be confirmed by the Senate.  Despite Harry Reid's contention that the "Reid Rule" excludes Supreme Court nominees, it is contented that avoiding Cloture for a Supreme Court nomination would simply be a second application of the Reid Rule precedent.

Giving a Flying Flip About Filibusters

Senator Ted Cruz (R-FL) took to the Senate floor at 2:41 PM yesterday to speak against voting for the cloture motion on the House Continuing Resolution legislation (House Res. 59) and did not finish his remarks until 12:00 noon the next day.  But detractors like Senate Majority Leader Harry Reid (D-NV) are quick to insist that it was not a filibuster.  It is said that the Freshman Senator from Florida could not have a filibuster as his effort was not intended to delay or prevent legislative action.    

A broader understanding of filibuster is an effort to prevent action by making a long speech.  The 21 hours and 19 minutes of floor time certainly qualifies as a long speech.  Consider the aim of Senator Cruz’s effort.  He was speaking against a cloture motion.  Cloture is the procedure that a 60 vote majority in the Senate cuts off debate.  

Those who deny that Senator Cruz’s control of the Senate Floor for nearly a full day was not a filibuster are less interested in abiding by proper political parlance.  They know that the public generally considers a filibuster a noble effort of a Senator to abide his conscience and speak what he understands as the truth until he can stand no more.   Filibusters evoke memory’s of the Frank Capra film “Mr. Smith Goes to Washington” (1939).

[L] Frank Capra's Mr. Smith Goes to Washington (1939)  [R] Sen. Ted Cruz (R-TX) during filibuster 

But if Cruz just was giving a very long speech, then he can be framed as just wasting the Senate’s time, even though Majority Leader Reid was appraised and approved of the talkathon. 

All of this between-the-beltways trivialities about filibusters illustrates one of Senator Cruz’s concerns.  Early on in his filibuster, Senator Cruz alleged that most people don’t give a flying flip about a bunch of politicians in Washington, DC with cheap suits and haircuts. A filibuster may empty the Senate chamber, but it can generate considerable attention and audience via CSPAN as well as alternate media and the internet. 










But couching the Senate floor action as a non-filibuster against the cloture vote on the Continuing Resolution (House Res. 59) which it’s technically correct, it is smoke and mirrors to confuse the public of the real work. 

The Continuing Resolution is a budget matter.  The Senate had not passed a budget in four years, and so Continuing Resolutions which used prior spending levels as a metric for stop gap funding have been used.  For Fiscal Year 2014, the Senate had not passed any specific appropriation bills and the October 1st  fiscal new year loomed.  

So the House of Representatives passed a Continuing Resolution for two months of funding of all federal programs, save the yet to be implemented Obamacare.  The White House and Senate Democrats under the direction of Senate Majority Leader Reid want to strip the defund Obamacare provision, which many ayes in the House were premised.

The cloture motion was meant to cut off debate.  If passed, Senate rules for budget bills then only allow for 30 hours of debate.  Senator Cruz and other tea party sympathetic conservatives were concerned that Senator Reid would present a clean bill, which stripped the defund Obamacare provision and not allow for any amendments.  

Cruz’s filibuster sought to educate the public of the Senatorial shenanigans.  Cruz alleged that some Republicans wanted to vote for cloture and then vote against final passage.  This DC two step allows what detractors call RINOs (Republicans In Name Only) to say that they voted against the bill, but their vote was a purely symbolic measure and the Democrat majority gets its way to continue to impose an overarching takeover of the health care system (aside from Congress and Federal workers, who were extra juridically exempted by President Obama over specific legislative provisions). 

Progressive political hacks wrung their hands at Senator Cruz’s speechifying, noting that he was wasting valuable time.  Well, then they should be upset at the Majority Leader who blessed the stunt.  Perhaps these advocates of efficiency should focus like a laser beam on Senator Reid’s leadership, which has proven incapable of producing on time budgets for the last five years. 

Tx. State Sen. Wendy Davis during her filibuster June 2013

The same liberal voices who condemn Senator Cruz's "legislative logorrhea" are the same sources who praised Texas State Senator Wendy Davis (D- 10th Fort Worth) who engaged in a quixotic 11 hour filibuster to block the popular Texas SB 5 which restricted abortions after 20 weeks in Texas.   This filibuster ultimately was inconsequential, as the legislation eventually passed in another legislative session.  But Davis stood for what she believed in, educated the public and burnished her political credentials.  The elite liberal media showed Ms. Davis with praise and powder puff interviews.  Yet Senator Cruz will be scourged by the same media as being obstructionist and self interested.  

To echo Hillary Clinton, these Cruz critics decry the “faux" filibuster by effectively saying “What difference, at this point, does it make.”  Obamacare is the law of the land, there were not 40 votes to stop the measure and Cruz did not have control of support of the entirety of his own caucus.  Those sound like compelling talking points for politicos without principle who care more about being on the winning side than doing the right thing for the American people. 

In between renditions of Dr. Seuss’ Green Eggs and Ham for the Cruz childrens’ storytime, there was probably more substantive debate about Obamacare’s adverse effect on the health care delivery system and retarding economic growth during Cruz’ s filibuster than what occurred when the so called Affordable Care Act was passed by the Senate on Christmas Eve, 2009. 




The filibuster drew more ordinary people outside of the District of Calamity (sic) to pay attention to detailed arguments against than the sweet lies put forth by the  White House and the lapdog Lamestream Media.

While procedurally Senator Cruz's efforts might not amount to much, this is not the only battle to be found in defunding Obamacare.  Even if Senator Reid is successful in passing a Continuing Resolution which strips the defund Obamacare provisions through the Senate, the House must act.  Either the Republican majority in House must acquiesce to Senator Reid's jam down  with a "clean" C.R., the Chambers must  conference or the House can pass another legislative vehicle which the Senate may not approve prior to October 1st.  There are suggestions that revised House legislation might include a one year delay in Obamacare, revoking the Congressional Obamacare exemption,  or approving  XL pipeline, which would be a tough pill for Senate Democrats to swallow. 

Mr. Smith Goes to Washington illustrated how people in the heartland became engaged in a filibuster by dumping an alluvia of telegrams on the Senate floor.  Senator Cruz is hoping that in the internet age, public opinion can be galvanized by social media.  C-SPAN allowed for internet 2.0 peer to peer engagement with Cruz reading Twitter messages on the Senate Floor.  Cruz is counting on alternate media and social media to work around the Lamestream Media and produce a groundswell of support which changes the static between the beltway certainty that an unpopular, flawed law like Obamare can be ramrodded into implementation. 

Senator Cruz's filibuster drew back the curtain on the complacency of the Cocktail Party in both parties between the beltways. The vitriolic reaction that senior Senator John McCain (R-AZ) unleashed against Cruz after stopped speaking reveals his true self. Freshman Senator John Boozman (R-AR) reportedly dressed Cruz down for all the out of state phone calls about Obamacare.   And Senate Minority Leader Senator Mitch McConnell (R-KY) refused to support the renegade rhetoric.  This internecine sniping prompted former Governor Sarah Palin (R-AK) to note:  "We already have three parties: the Liberal Democrats, the RINO Republicans and 'the good guys.' ". 

Cruz's marathon speech in the Senate also showed some unity amongst the Young Turks.  Senator Mike Lee (R-UT) was instrumental in dissecting the deficiencies and questionable jurisprudential propriety of Obamacare implementation. But what was really impressive was to see how prospective rivals for the 2016 Republican Presidential nomination, namely Senator Rand Paul (R-KY) and Senator Marco Rubio (R-FL), worked together to get the message out about Obamacare and do something, rather than sit back and cast empty symbolic votes.

The nearly day long debate also had a couple of remarkable colloquies with "friends" on the other side of the aisle. A late night discourse between Senator Cruz and Senator Tim Kaine (D-VA) showed collegiality and some measure of cooperation on solving Obamacare problems in the future. 

Majority Whip Senator Dick Durbin (D-IL) tried two tactics.  In the evening, Durbin's disparaging dialog that a man educated at that nation's best school should know how to count to sixty (referring to the cloture mark) seemed aimed straight for MSNBC video "drop ins".   In the morning, Durbin returned to argue the same sob story using an airplane analogy. Even though Cruz had been on his feet for 18 hours, Cruz used the airplane analogy as a means to show that Congress gets first class medical care with their exemption while little people get less under Obamacare. 

As the Noon hour approached, Senator Cruz offered Majority Leader Reid several unanimous consent proposals to speed up the deliberation process. Majority Leader Reid tried to take Cruz's remaining time away from him by procedure.  Later Reid wanted to ask a question which was more of lambasting argument, which Cruz withdrew his time.  





Finally, Democrat Majority Leader urged Cruz to give up 15 minutes of time to Senator John McCain.  It's a good thing that Cruz did not accede to the latter demand to someone who called him a wacko-bird, as McCain inveighed on his "friend" Cruz. 

In trying to generate groundswell support in the grassroots, Senator Cruz's filibuster popularized the mantra "Make DC Listen".  This slogan may energize the Tea Party Caucus, possibly be the touchstone of a third party or a Presidential campaign.  Nevertheless, "Make DC Listen" taps into public discontent and shows social media savvy. 

So even though Senator Cruz was not successful in his immediate tactic to prevent cloture on the C.R., we ought to give a flying flip about his filibuster as it may be a harbinger for real change in the District of Calamity (sic). 

An Animated John McCain Dishes and Disses

Senator Rand Paul’s (R-KY) blockbuster filibuster of CIA Director John Brennan’s nomination sparked  considerable friction by his  fellow party member Senator John McCain (R-AZ) both on and off the Senate floor.  

To try to discern why the senior Senator from Arizona lashed out at the McCain Mutiny, it is instructive to delve into a recent friendly interview that McCain had with radio talk show host Michael Medved.  Medved was an early supporter of McCain’s Presidential race in the 2008 cycle and his center-right politics sync well  with the maverick Senator's stances.

A major aspect of  McCain’s P.R. campaign was to continue a hellfire drone attack against Senator Rand Paul’s attention-getting filibuster.  




To his credit, Senator McCain fought hard for military issues and worried about isolationist tendencies of libertarian oriented Senator Paul. 

What was revealing was Senator McCain’s evasive answer to Medved question about regretting the polarizing effect of the internecine intramural argument about the drone filibuster.  Instead of calling a truce or even diplomatically claiming that these were frank exchanges of impassioned opinions, McCain continues on the offense.  




“Maverick” charged that the cuts from in the sequester, that were favored by Tea Party types, will “devastate our military.”  Of course, the leading force behind the “Gang of Fourteen” proved himself to be utterly ineffective to find smarter budget cuts that the Obama Administration and Congressional Democrats prior to the sequester. 

When McCain was questioned about his dinner with Barack Obama, the Senator dished that he hoped that they could reach a Grand Bargain with the Obama Administration.




It seems that he is banking on McCain/Graham facilitated dinner party with Obama to begin backroom bipartisan banter to ameliorate the sequester cuts.  So Rand Paul’s filibuster stole the spotlight from the bipartisan dinner show, it threatened the perception of McCain’s perception of Senatorial leadership and it alluded to  foreign policy priorities that McCain considers anathematic. 

Conversely, McCain played fast and loose with some aspects of the Constitution.  McCain suggests that the drone program is alright but that it should be put under military auspices.  Rand Paul’s filibuster was premised on evasive answers by Attorney General Holder about initiating a drone attack in America on Americans not engaged in imminent battle.  

The weapons which drones carry are Hellfire missiles, which indiscriminately damage upon impact, which could take out innocent bystanders.  So McCain is unconcerned about the lack of due process execution of a non-emergency, so long as it is run by the Pentagon which has more oversight.  OK, so Posse Comitatus may not be a constitutional tenant, but it has kept the military from doing police actions in 1878, unless we are in a state of martial law.


On an ancillary note, CIA Director took his oath of office in a closed door ceremony. But the Obama Administration reveled that Brennan was sworn in not on a Bible but the original U.S. Constitution (without the Bill of Rights).  Why that curiosity? 

 Maybe this can be a topic at the next Cocktail Party. Amuse bouche are often served with wine–considering the company, presumably it will be of French origin.  

Post Scriptus 03/15/2013  While it took a week, Senator McCain walked back his Wacko Bird remarks.  But a better question is will the conservative/libertarian base forgive "the clueless old man"?