Filibuster Lite“I would just say, when you put a bill on the floor and file cloture immediately, that’s hardly a filibuster.”

—Sen. Kay Bailey Hutchison (R-TX)

HOW DO YOU FASHION A MAJORITY OUT OF A MINORITY? Consider the trope Senate Minority Leader Mitch McConnell (R-KY) has been rehearsing for the media since the 111th Congress convened and elected its leaders.

“Let me just say that we may be forty-two members,” McConnell said at a January 7 press conference. “But we represent fifty percent of the American people. And we are going to have total unity in insisting on our opportunities to offer suggestions and amendments to legislation that comes along.”

McConnell wasn’t acknowledging Democrat Al Franken’s defeat of Norm Coleman (R-MN), which is being litigated to an excruciatingly slow conclusion in Minnesota. But assuming McConnell’s math was right on the forty-two Republican senators he claims before the courts close the door on Coleman, losing five million Minnesotans still leaves him 48 percent of the population.

There’s more to unpack in McConnell’s claim to parity with Senate Democrats. “Total unity in insisting on our opportunities” implies that, as minority leader, McConnell intends to hold the Senate Republican Conference together to filibuster legislation to which he objects.

McConnell was more explicit a few days later, when National Public Radio anchor Renee Montagne asked if he would consider filibustering President Obama’s stimulus package.”Well, if you mean will something in the Senate require sixty votes,” McConnell said, “that’s true of almost everything these days.”

A traditional filibuster involves one senator standing on principle on the Senate floor, shutting down the legislative process by refusing to yield. Like South Carolina segregationist Strom Thurmond, who put his bladder on the line for Dixie, after dehydrating himself in a steam room so he could drink water without urinating while talking for twenty-four hours and eighteen minutes, in a futile attempt to block a civil rights bill. (An aide stood by in a cloakroom, holding a pail should the senator need it.)

Today we get something much more genteel. The minority leader announces he has the forty-one votes required to block cloture on the unlimited debate allowed in the Senate. And the majority capitulates. No cots on the cloakroom floor. No aides with buckets. No “going to the diaper.” No dehydration session. The modern filibuster allows the minority party to obstruct without coming off like obstructionists.

Assuming that Al Franken will be certified and seated as the junior senator from Minnesota, Democrats and the two independents who vote with them in the Senate will remain one vote shy of a “filibuster-proof” majority of sixty. That one vote is McConnell’s trump card.

McConnell wasn’t always a filibuster enthusiast. As majority whip in 2003, it was his responsibility to move President Bush’s Medicare Prescription Drug bill through the Senate. Democrats opposed it because at $400 billion (a dishonest and wildly optimistic fiscal note) it seemed to do more for pharmaceutical companies than for senior citizens. Democrats also took issue with a provision that prohibited the federal government from negotiating volume discounts with drug companies. Tom Daschle, then Senate minority leader, was counting votes. And several Democratic senators were making the case for a filibuster.

McConnell was indignant. “Seniors have waited too long, and this bill does too much for it to be subject to obstructionism,” he said. The Democrats caved.

Nor was McConnell much of an enthusiast in 2005, when Democrats were using the threat of a filibuster to block some of President Bush’s more extreme appointments to the federal bench. McConnell, majority whip at the time, joined Majority Leader Bill Frist in an effort to rework Senate rules and ban the filibuster of judicial nominations. McConnell did the heavy lifting, counting votes for Frist and announcing that the Republican conference had enough votes to change the Senate rules on the issue. A “Gang of Fourteen,” which included seven Republicans and seven Democrats, bypassed Frist and McConnell to cut a deal that saved the filibuster.

Then the Democrats took control of the Senate, by a 51-49 margin, in the 2006 election. And Mitch McConnell rediscovered the filibuster. Between 2007 and 2009 he set the record with either seventy-three or sixty-five filibusters—depending on which source you accept or how you define “filibuster.”

Regarding his record, McConnell taunted his critics. “See, the last time they used the charts on filibusters, I think they used the number seventy-three,” McConnell said of Senate Democrats at an April 2008 press conference. “This morning, I’m told they used the number sixty-five. So obviously, the number of filibusters, as they see it, is diminishing. Maybe by the end of the summer we’ll be down to nine.” Even at sixty-five, McConnell’s Senate conference holds the record for the number of filibusters in a two-year period.

The minority leader goes at the modern, bloodless filibuster with a zeal that recalls Strom Thurmond’s bucket and Turkish bath. Last June, for example, Majority Leader Harry Reid (D-NV) brought a bill up for a vote on the Senate floor. The “Carbon Emissions Cap and Trade Plan” was an ambitious attempt to limit greenhouse gas emissions, the prime cause of global warming. It would have lowered greenhouse gas emissions to 18 percent below 2005 levels by 2020 and to 70 percent below those levels by 2050. Senate sponsors included liberal Barbara Boxer (D-CA), whose committee had drafted the bill; John Warner (R-VA); and Joe Lieberman (I-CT). A bipartisan majority of the Senate was on record as supporting the bill.

McConnell was philosophically opposed to it and angry at Reid. A Senate rule—one that is always dismissed by a pro forma motion—requires bills to be read aloud on the floor of the Senate before the members vote. McConnell objected to the motion to dispense and required the Senate clerk to read the 491-page climate bill aloud.

When Reid tried to end the procedural debate by invoking cloture and forcing a vote, he lost, 48-36. Six senators—including Hillary Clinton, John McCain, and Barack Obama—who weren’t present but said they supported cloture, still wouldn’t have gotten Reid to the sixty votes he needed to shut off debate. After nine hours of listening to a bill read aloud and a failed cloture vote, Reid folded, ending the first filibuster by a Senate clerk.

The climate bill was a long shot in that Senate. Some Democrats and most Republicans opposed the bill, and there were disagreements regarding limits that Reid had imposed on floor amendments. But to McConnell, the procedural fight wasn’t about the contents of the bill or Reid’s rules for floor debate. After Reid backed down, McConnell told reporters he blocked the bill to settle a score about judicial appointments.

McConnell even filibusters the naming of conference committees, which has never been done before, killing bills on the way to conference committees that can’t be impaneled because the process of impaneling them is filibustered.

A DIAPER FOR THE LEADER—The first week of January, McConnell walked into a new reality. The conference he leads had lost eight seats in November. And before the 111th Congress convened, Republican Senate incumbents from Missouri, Kansas, Ohio, and Florida announced that they won’t seek re-election next year. Presidential sibling Jeb Bush walked away from the seat that will open up in Florida. Kay Bailey Hutchison (R-TX), whose term ends in 2012, moved $8 million from her Senate account into a campaign account in Texas, to fund up her 2010 governor’s race. McConnell met with Hutchison, according to Politico, and pleaded with her to hold on to her Senate seat until the last minute.

It’s early, and the new Congress is looking for its center of gravity. But already McConnell seems like a man out of time, a leader locked in the last session, warning the majority that all bills will have to go through him.

Over the past two years the Republican conference that had McConnell’s back blocked the elimination of secret votes in union organizing campaigns; authorization for the Department of Health and Human Services to negotiate with pharmaceutical companies to lower drug prices for Medicare recipients; controls on greenhouse gases; increased Medicare payment rates for doctors; funds for local communities to purchase subprime mortgages; and provisions that would allow bankruptcy judges to resolve disputes between homeowners and lending institutions holding their mortgages. Almost all are issues on which Barack Obama has promised to deliver. If McConnell stays his course, a hard landing seems inevitable.

How to bring him to the ground?

The same Senate rules that allow the passive filibusters that are practiced today also allow the majority leader to use a cloture vote to force a filibuster on the floor. It would entail the loss of valuable legislative time. But if Harry Reid were to force Mitch McConnell to filibuster, he would have to diaper up and stand on the floor as the leader of the party of obstruction. Not a good place to be standing while the public is desperately looking to government for solutions to the multiple crises George Bush leaves behind.

THE UNITARY EXECUTIVE IN COURT—In March of 2006 the executive and judicial branches of the government of the United States faced each other down in a constitutional crisis—a fundamental disagreement over power that seemed beyond resolution. The venue was the Mark O. Hatfield United States Courthouse in Portland, Oregon. The president and vice president weren’t directly involved. Yet the core issue in the confrontation in District Judge Garr King’s office was the unitary theory of executive power, by which George Bush and Dick Cheney have vastly expanded the authority of the president.

Now, almost two years later, federal Judge Vaughn R. Walker in San Francisco, where the lawsuit was consolidated with others, has moved the conflict closer to a decision that could invalidate the unitary theory.

The lawsuit was filed against the Bush administration by an Oregon-based Muslim charity. It pivots on a file of top-secret documents that has been sitting in a Sensitive Compartmented Information Facility for almost three years, since Judge King ordered it locked up in response to a request by Department of Justice (DOJ) lawyers. Without the classified file, the case cannot come to trial, because it contains the evidence that the attorneys representing the Al-Haramain Islamic Foundation must have to prove their clients were illegally wiretapped by the government. The file is also the only known documental proof that the Bush administration engaged in warrantless surveillance inside the United States.

There would be no lawsuit if the Treasury Department’s Office of Foreign Assets Control hadn’t inadvertently mailed the transcripts of a warrantless wiretap to a Washington, D.C., lawyer representing the now-defunct Muslim charity. Unaware that the documents were classified, the attorney photocopied them and mailed them to her clients, one of whom is a Saudi Arabian national who had worked with the charity in Oregon but had returned to Riyadh. Weeks later, the FBI showed up at the attorney’s Washington office and demanded the documents, which she returned.

Other lawyers involved in the case also complied, destroying all photocopies of the classified file. To possess, read, quote, or paraphrase the documents would have violated the Espionage Act of 1917.

It wasn’t until the New York Times broke the story of the Bush administration’s warrantless wiretapping of foreign citizens under the Foreign Intelligence Surveillance Act (FISA) that Portland attorney Tom Nelson realized what the government had ordered destroyed. Al-Haramain sued—convinced that the files were evidence that the government had intercepted communications between two Washington, D.C., attorneys representing Al-Haramain and the charity’s board member in Saudi Arabia.

I have been writing about this case since 2006, first in a book and later in these pages (Washington Spectator, October 1, 2007). There are some things the attorneys I have interviewed cannot discuss, but I assume that the file they presented to Judge King in Portland two years ago was made from the copy sent to Saudi Arabia.

When Justice Department lawyers moved to recover the files, they crossed a line that is inviolate in American jurisprudence. San Francisco lawyer Jon Eisenberg, who joined Al-Haramain’s legal team shortly after the suit was filed, described what happened in Portland two years ago when Al-Haramain’s attorneys were meeting with Judge King.

“We got a call from Tony Coppolino [a senior attorney at the Justice Department]. He said, ‘I just want to give you a heads-up that the FBI is on the way to the courtroom to take the document from the judge.'”

Al-Haramain’s attorneys protested, and the judge responded to the DOJ lawyer: “What if I say I will not deliver it to the FBI, Mr. Coppolino.”

This brief encounter defined the larger issue in the conflict. Agents of the executive branch, more specifically the federal police, were threatening to seize a document from a member of the judiciary—a co-equal branch of the government.

“Then Judge King says no,” Eisenberg said. “He told them, ‘No, I’m not going to do that.'”
“That’s been their game,” Eisenberg said. “Don’t let us use that document to show standing.”

Judge Walker’s January 5 order reads like a game-changer. He had already ruled, in July 2008, that the government couldn’t rely on the State Secrets Privilege to declare all evidence in the case off-limits. “He said FISA pre-empts that privilege,” Eisenberg said. “He also said that Congress has the power to pre-empt the State Secrets Privilege. That’s where he rejected the unitary executive theory.”

“My pitch to the judge was that the unitary theory has it that the president can ignore the Congress in times of national security crisis,” Eisenberg said. “And if they think they can disregard the Congress, they can disregard you.”

The judge seems to accept his argument. In a backhanded reprimand to lawyers representing the government, he quoted from one of Eisenberg’s court filings regarding the DOJ’s use of its theory of “unfettered presidential power over matters of national security” to avoid complying with orders issued by the court.

Other lawsuits have challenged the president’s authority to order surveillance of American citizens in their homes and offices. All of them lack what Al-Haramain et al. v. Bush et al. has: hard proof that the government actually engaged in warrentless domestic wiretapping.

“From the beginning, I’ve told them to show us a FISA warrant [which the law requires in order to conduct surveillance inside the country] and we’ll go home,” Eisenberg said. “They can’t because there was no warrant… And they can’t go to court because they lose on the merits.”

No one knows what Eric Holder’s Department of Justice will do with this case. But Judge Walker is probably ready for Team Bush guys to move on. His January 5 ruling was a harsh critique of their work. As was his comment in open court: “I think you’re not doing the best service that could be done for the government…”

On the day after I spoke to Eisenberg, the DOJ filed an appeal. It was quite likely the final act of the Bush Department of Justice.