Something's got to give in the US Senate

Members of Congress took time off last week for a President’s Day break - officially a state (Senate) or district (House) work period – but they will be back in DC this week with two high-profile issues on tap. These are, of course, the Keystone pipeline bill and a looming funding cutoff for the Department of Homeland Security.

In combination, these controversial issues say a lot about what is wrong in the nation’s capital and suggest a need for remedial action. Stepping in “where angels fear to tread,” as SAFE often does, we will advocate changing the Senate rules so the majority can’t be blocked and frustrated at every turn.

Such action would not end partisan gridlock. Even assuming the GOP majority can come together in support of constructive ideas, which is no sure thing, any legislation that Congress passes would remain subject to presidential veto. But constructive legislation would have a better chance of reaching the president’s desk, and if he chose to play an obstructionist role this would eventually become apparent to all concerned.

This entry will recap where things stand on the two issues and suggest a path forward for Republicans. Neither a Constitutional amendment nor presidential approval would be required, so action could be taken quickly.

Our plan involves minuses as well as pluses, and a dubious maneuver would be necessary. Under the circumstances, however, we think it beats the alternatives.

A. Keystone pipeline – It is something of a mystery why this project became a political football, while other pipelines (some across national borders) have been reviewed and approved without much fuss. A nearly identical Keystone XL pipeline just got built – and no one noticed, David Zeiler, moneymorning.com, 2/11/15.

But for whatever reason, the Keystone pipeline has been challenged at every turn since it was proposed in 2008. Only now has Congress passed legislation that would conclude the seemingly endless review process and permit the northern stretch (1,179 miles) to be built (the rest is already in operation).

Although the president referred to Keystone project in his State of the Union address as “a single pipeline,” thereby implying that it’s no big deal, a presidential veto of congressional action has been repeatedly threatened.

The Keystone XL Pipeline Approval Act (S.1) was exhaustively debated in the Senate, with some of the numerous amendments that were offered being accepted. Among the changes was the insertion of this statement (with which we don’t happen to agree) in the bill. “It is the sense of the Senate that climate change is real and not a hoax.”

The bill as amended was passed by the Senate and then accepted by the House, in both cases by less than veto-proof majorities. The bill will reportedly be sent to the president this week. Congress to wait until after recess to send bill approving Keystone XL pipeline to Obama, startribune.com,
2/12/15.

One might think the president would sign the bill and state that he was doing so in the spirit of bipartisan compromise. It offers positive economic benefits, would generate government revenues instead of requiring the “investment” of taxpayer money, and does not involve any material environmental drawbacks (global warming alarmists shouldn’t care whether Canadian tar sands oil is shipped to the United States or China). The review process has taken far too long. A recent poll indicated that only 28% of Americans oppose the project while a clear majority supports it. CNN,
1/15/15.

Many observers believe, however, that the president will make good on his veto threat. He has never shown much interest in bipartisan compromise, and having run his last election race he is in a position to do what he wants.

Assuming a veto, the Republicans would attempt to pick up enough Democratic votes in the House and Senate to override it. Our guess is they would fall short, but at least the point would be made that it was the president – and no one else – who blocked the bill.

If such a pattern could be replicated often enough, ideally once a week, the mainstream media and general public might begin to see the president’s stance as obstructionist. But the Keystone pipeline bill represented a unique opportunity, not the first in a series of “conservative” bills with too much popular appeal to be sidelined.

To have any chance of showing its ability “to govern,” we think the GOP must change the Senate rules so as to reduce the power of the minority to block legislation it doesn’t like. Witness the standoff over the funding of the Department of Homeland Security, which is discussed in the next section.

B. Looming DHS shutdown – Our reasons for regarding executive amnesty (administrative orders to waive enforcement of the immigration laws applicable to millions of people living in this country illegally) as unconstitutional have been previously stated. Others have expressed a similar conclusion, including columnist Charles Krauthammer, liberal law professor Jonathan Turley, the Washington Post, and the president himself (before his thinking evolved). “The Constitution still matters” and “Executive amnesty,” SAFE newsletter, winter 2014.

The orders were issued, however, raising the question of what should happen next. Several lawsuits were filed or are contemplated, including one backed by 26 states (more about this shortly). And congressional Republicans mounted an effort to defund implementation of the orders by the DHS.

The first step was taken during the lame duck session in December, when DHS funding was only extended until February 27 while the funding of all other government agencies was extended through the end of the fiscal year (September 30).

In January, the House passed a bill to fund the DHS through September 30. It included provisions intended to prevent implementation of the allegedly unlawful orders (some have suggested the DHS could frustrate this intent by moving fee revenue, etc. around in its budget). No Democrats supported the bill, and there were several Republican defectors. House passes DHS funding bill that prohibits Obama’s unilateral amnesty, Terrence Jeffrey, cnsnews.com,
1/14/15.

H.R.240 was sent to the Senate, where it has languished ever since. For lack of 60 votes in support of bringing it to the floor, substantive discussion was repeatedly blocked while the funding cutoff clock continued ticking. There is no clear way to break the impasse, so one side or the other will eventually have to blink. [Senate Majority Leader Mitch] McConnell, after his no-shutdown pledge, quickly finds himself boxed in, Paul Kane, Washington Post,
2/13/15.

To date, most of the onus for the impasse has been put on the GOP. It was even suggested, for example, that the House should send the Senate a “clean” (without the restrictions) DHS funding bill without waiting for action on H.R.240. To his credit, House Speaker John Boehner summarily rejected this idea. Republicans turn up pressure on Democrats in DHS funding fight, Susan Ferrechio, Washington Examine
r, 2/13/15.

“The House has passed its bill,” Boehner said [in response to questions from reporters]. “We've funded the Department of Homeland Security. And we've stopped the president with regard to his executive actions. It's time for Senate Democrats to get into the game, get on the bill. If they don't like what we've done, then they can amend it. Simple as that.”

The plot thickened when Judge Andrew Hanen, a federal judge assigned to the anti-executive amnesty lawsuit brought by Texas and 25 other states, issued a temporary injunction against the government to block implementation. This order did not constitute a decision on the merits, but was justified (in a lengthy memorandum of law) on the basis that the plaintiffs were likely to prevail and would suffer irreparable injury if the government was allowed to proceed at this juncture. Texas judge’s immigration ruling brings mix of applause and outrage, Elizabeth Liorente, FoxNews.com,
2/17/15.

In support for its request to the 5th Circuit Court of Appeals for an emergency stay, the government can be expected to argue that (1) an injunction is unjustified at this stage of the proceedings, (2) the states lack standing because federal law is supreme, and (3) Judge Hanen is wrong on the merits anyway. The president, for one, has expressed confidence that the order will not stand. Obama, immigrants refuse to be stopped by court decision, Stephen Dinan, Washington Time
s, 2/18/15.

Mr. Obama, speaking to reporters in the Oval Office, said he would respect the judge’s ruling but predicted an eventual court victory and said the Homeland Security Department will be ready once courts approve his actions. “The law is on our side, and history is on our side,” [he] said.

Some Republicans seized on Judge Hanen’s order as bolstering the GOP’s position in the DHS funding fight. See, e.g., “Ted Cruz warns Obama to stop spending on amnesty plan for illegal immigrants, Stephen Dinan, Washington Times,
2/18/15.

Sen. Ted Cruz warned the administration Wednesday that it needs to stop even planning for an eventual amnesty for illegal immigrants, saying a federal judge’s broad injunction means it would be illegal for the Homeland Security Department to spend any money on President Obama’s immigration plans. The Texas Republican also said Judge Andrew S. Hanen’s ruling late Monday undercuts the basis of Senate Democrats’ ongoing filibuster to block homeland security spending, which the president’s allies have launched to try to defend the White House’s immigration policies.

Other Republicans are worried about the looming showdown and desperately anxious to avoid it. Judge Hanen’s order shows the battle has been won, they argue, and it’s now time to let the courts do their work. See, e.g., “Sen. John McCain: Court ruling ‘perfect reason’ to not shut DHS down,” Caroline May, breitbart.com,
2/19/15.

“I would put sufficient blame on the Democrats for not allowing us to move forward in the Senate,” McCain said. “But having said that, now I’m hopeful with this court decision, with the declaration that the president himself has acted unconstitutionally as he himself stated — would be — I think 22 times—that we would let the courts move forward with this issue since we have a favorable ruling.”

We disagree with the premise that the battle has been won; a higher court could easily rationalize a reversal of Judge Hanen’s order. In any case, there would be nothing to stop the president from announcing that he had decided to proceed because the needs of millions of illegal immigrants were too pressing to be delayed by the legal process. Polling indicates that his base would probably back him. Democrats to Obama: Go ahead and ignore the court, Cheryl Chumley, Washington Times,
2/20/15.

Rasmussen found 43 percent in the party think the president should have the authority to dismiss court rulings that he perceives as unfair blocks to issues of personal importance. Thirty-five percent of Democrats disagree. But Republicans say hold the phone— that’s not constitutional.

In discussing the defunding proposal earlier, SAFE suggested that Republicans should think better of the matter unless they were prepared for a tough battle. And so the new, GOP-controlled Congress begins,
1/12/15.

Left unsaid, we gather, is what Republicans plan to do when the defunding proposal inevitably stalls and they are being painted as willing to force a DHS shutdown during a period of stepped-up terrorist threats. They would do well to reconsider this line of attack unless they are willing to see it through to the end.

Having chosen to start down the defunding path, however, Republicans will be left looking foolish – nay pathetic – if they cave now. And there are absolutely no signs that Democrats are getting ready to buckle. Accordingly, it appears that the DHS funding will run out on Friday.

Then what? Most of the DHS employees (airport screeners, border security, Secret Service, CIA, etc.) would reportedly be classed as essential workers and asked to continue coming to work with assurances that their pay would be made up when departmental funding was restored. No big deal in our opinion.

The administration would find ways to make the situation seem like a problem, of course, and experience suggests that the media and a majority of Americans would tend to blame Republicans as has happened in previous “shutdown” scenarios. We like the GOP’s chances this time, however, if they play their cards right.

C. SAFE’s suggestions – The first thing Republicans need to do is stick together for a change. If they plan to cave, there is no benefit in allowing Senator Cruz et al. to go around making defiant statements to the media. If they are going to fight, the same goes for dovish statements from Senators John McCain and others. By the way, we have not noticed any Democrats openly questioning the positions being taken by the president and their party.

The second point is to call out the Senate Democrats for hypocrisy. It simply does not make sense to blame Republicans for refusing to fund DHS when they are the ones who are refusing to even discuss a House bill that would do exactly that. Which is not to say Democrats should necessarily have to agree at the end of the debate, but they should at least be willing to advocate their position on the floor of the US Senate. What are they afraid of?

Finally, it’s time to identify the real problem – dysfunctional Senate rules that give too much power to the minority – and propose a longer-term solution. Simply put, the filibuster needs to go so the majority can get some business done for a change.

Some will bring up the sanctity of tradition and long-standing rules, and if the system were working we would readily agree. The actual situation, however, is a Republican-controlled Congress that can’t move legislation it favors to the president’s desk, and the bottleneck is in the Senate.

Unless something changes, Americans can look forward to another two years of legislative futility, which will encourage the administration to continue furthering its big government agenda by executive action. Is that what the voters intended when they ousted a number of Senate Democrats last fall?

Another argument is that killing the filibuster might clear the way for a flood of progressive legislation the next time Democrats get control of Congress. Conservatives: You will live to regret your attacks on the filibuster, Michael Hammond, Townhall.com
, 2/21/15. Don’t abolish the filibuster, Philip Klein, Washington Examiner, 2/20/15.

Point well taken, but no course of action is without risk and the current rules are undermining the ability of Congress to block executive branch overreach. On balance, an aggressively expanding presidency seems far more dangerous than allowing a majority in Congress to have its way (still subject to presidential veto). Abolish the filibuster, Charles Krauthammer, Washington Post, 2/19/15.

. . . Obama has repeatedly usurped congressional power, most egregiously with an executive amnesty for illegal immigrants that for four years he himself had insisted was unlawful (a view given significant support this week in a federal district court).

Also, Republican restraint at this juncture would provide no assurance of Democratic restraint in the future. Sooner or later the filibuster is going to go, so the GOP might as well reap some benefits while they can.

As for the mechanics of doing away with the filibuster, a dubious maneuver would be required (as indicated earlier) because the Senate rules require a 2/3 vote to change the rules and that surely wouldn’t be obtainable. There is a clear precedent, however, for ignoring this requirement and proceeding by majority vote. Senate Democrats execute “nuclear option,” 12/2/13.

We didn’t like the way in which the nuclear option was executed under the aegis of then Senate Majority Leader Harry Reid, and we don’t like the idea of a repeat now. As the saying goes, “two wrongs don’t make a right.” But if the question is whether to uphold the Constitution or preserve the Senate rules, the choice seems pretty clear.

Under the current rules, Republicans will face frustration at every turn until the 2016 elections and then be lambasted for ineffectiveness. Ending the filibuster would give them a fighting chance to start getting things done.
Krauthammer, op cit.

[Filibuster abolition] would radically change the next two years *** give Republicans full control of the Congress and allow swift passage of a GOP agenda *** clarify the antagonists: a lawless president vs. a willful Congress. The GOP could be sending bill after bill to the president’s desk — on tax reform, trade, Obamacare and, if it has the guts, immigration.

Senate Majority Leader Mitch McConnell would do well to count the votes carefully, however, for the filibuster is popular on both sides of the aisle. Have Republicans gone MAD (mutual assured destruction) on the filibuster? Joshua Huder, csmonitor.com,
2/18/15.

Today, the filibuster is commonly perceived as the minority’s tool to obstruct business. That’s true but unlimited debate also bolsters the rank-and-file in both parties. Threatening to filibuster a bill gives all senators enormous leverage in the negotiating process. For this reason most majority senators, even insurgents like Sen. Ted Cruz (R) of Texas, are unwilling to eliminate the legislative filibuster.

If the votes can be assured, we say go for it!


FEEDBACK

The filibuster was used by Southern Democrats allied with Republicans in the 1950s and on with some successes. To permanently do away with it would be dicey for the GOP given what the Democrats could do without it when they regain the majority at some point. And don’t overestimate what Republicans could achieve in the meantime; they aren’t exactly united when it come to policy issues. – SAFE director

Update: the Keystone pipeline was sent to the president on February 24 and promptly returned with a veto on grounds that the administrative review has not been completed.
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