A Clear Transgression Yields A Cloud Of Fallout

Sometimes, a Supreme Court decision is too close to call until the moment a ruling comes down. In other cases, however, even an outsider can see the outcome far ahead of time without the benefit of a crystal ball.

The Court unanimously decided last week that three of President Obama’s recess appointments to the National Labor Relations Board were unconstitutional – mainly because the Senate was not in recess when he made them. This decision can hardly have surprised the president, who knew as well as anyone that he overstepped his bounds. It was obvious, even at the time. The appointments were never really meant to stand; they served their political purpose, and can now be discarded.

Obama’s tactic was a gamble, however, because the Court could have stripped presidents of a great deal of their power to make recess appointments at all. In fact, four justices wanted to do just that, narrowing the scope of the recess appointment power to times when Congress is between formal sessions. They also would have preferred to restrict the recess appointment power to vacancies that arise during the break in question, rather than to any post that is already open when Congress goes into recess.

The Court’s four liberal members and Justice Anthony Kennedy, however, decided they did not want to go that far. Instead, the controlling opinion signed by those five justices simply identified the obvious fact that the president had no authority to make recess appointments when the Senate was not technically in recess. Justice Stephen Breyer, who wrote the majority opinion, stressed that the Court was guided by history, as reflected in the fact that, while the ruling rebuked Obama’s behavior, it left the presidential power to make recess appointments more or less alone.

The practical effect at the NLRB will probably be minor. The president’s illegal appointments were subsequently ratified by the Senate after Democrats, who control the chamber, changed the filibuster rules. Since the current NLRB membership has been properly confirmed, the Board could presumably revisit any rulings that were made without a proper quorum. At least some disputes are likely to be reheard. Practically, however, it seems likely the Board will just carry on, so the overall effect is nil. Obama overstepped and he got away with it.

And at the Consumer Financial Protection Bureau, whose director, Richard Cordray, was appointed the same day under the same invalidated logic, no impact is expected from the ruling. After Cordray was formally confirmed by the Senate, roughly six months after Obama appointed him, he took the step of reaffirming and ratifying all his prior actions.

Although Obama was lucky enough to avoid costing himself and his successors the power to make recess appointments, the dust-up is likely to have at least one long-term effect: The Senate is unlikely to return to its old filibuster rules. When Senate Democrats exercised the so-called “nuclear option” last November, they did away with the Republican minority’s power to block nominees who cannot win 60 votes for confirmation. In doing so, they invited Republicans to return the favor once the balance of power shifts.

What is the Filibuster-Breaking Nuclear Option?

What is the so-called “nuclear option” that Senator Bill Frist may deploy soon in a precedent-setting attempt to break a potential filibuster? It sounds ominous, but what is it all about, really?

President Bush has the opportunity to nominate and fill numerous federal judicial positions this year. Eventually he will have the opportunity to nominate one or more Supreme Court jusices as well. However,this issue isn’t about the potential Supreme Court nominations yet, but ultimately it will be.

The Democrats in the Senate plan to use the filibuster to prevent the Senate from voting on the federal judicial nominees that the Democrats see as objectionable. A simple majority of 51 Senators is needed to confirm the nominees. However, once a filibuster has begun, 60 votes are then required to invoke cloture, ending the filibuster, and forcing a vote. There are 55 Republicans in the current Senate, enough votes to confirm President Bush’s federal judicial nominees, but not enough to break a nomination-ending filibuster without bipartisan cooperation.

The Republicans contend that requiring 60 votes to effectively confirm a nomination is unconstitutional. The Constitution is imprecise on this point. The Constitution only asks the Congress to “advise and consent” regarding judicial nominees, which implies that only a simple majority vote is needed. The Democrats contend that the filibuster is not unconstitutional and has been used often in the past by the minority party, both Republican and Democratic, and that rules governing its usage should be left intact.

Republican Senator Bill Frist has proposed the “nuclear option,” which would set a precedent and effectively change the rules. Currently, Senate Rule XXII stipulates that invoking cloture requires a supporting vote of 60%, and it further stipulates that to change the rule requires a supporting vote of 67%.

This is considered a “nuclear option” because it circumvents Senate Rule XXII which governs cloture. It also would cause further division among Republicans and Democrats, making bipartisan cooperation in the future more difficult. The option would also be a tactic that would be used against the Republicans in the future when they are the minority party and a Democratic President nominates federal judges.

A Brief History of the Procedural Filibuster

It has been many years since the last real filibuster was held in the U.S. Senate. In the meantime there have been numerous procedural filibusters, an interesting concept that is unique to our American political system. Here is a brief history about how the procedural filibuster came into existence.

The U.S. Constitution contains a provision that each house of Congress may determine their own set of rules and procedures. The early Senate adopted many of their rules from the British parliamentary experience. Traditional British parliamentary procedures included a section about the concept that allows a member to interrupt debate on an issue by raising a motion to call the “previous question.” If this motion is seconded and passed, then the question is put to an immediate vote with no further debate allowed. Thomas Jefferson wrote about this procedure in his Manual of Parliamentary Practice. Not surprisingly then, a similar procedure appeared in the list of rules used by the Continental Congress in 1788. In 1789 the rules adopted by the U.S. Senate also included a similar section about calling the “previous question.”

Vice President Aaron Burr, in his farewell speech to the Senate in March of 1805, recommended that the rule regarding the “previous question” be discarded since it had been used only once during the previous 4 years. When the rules were rewritten in 1806, the section about the “previous question” was omitted.

However, the rules of the Senate still granted authority to the presiding officer of the Senate, the Vice President, to use his discretion to bring to an end long, dilatory speeches and to disallow meaningless motions. In fact, John Adams, Thomas Jefferson, and Aaron Burr each used this power during their terms as Vice President.

As the years went by this power was viewed suspiciously as one that could potentially be abused. An incident in 1825 caused the Senate to revise their rules. Vice President Calhoun allowed Senator Randolph to ramble on daily over a three month period about irrelevant subjects, mostly personal attacks against President John Quincy Adams. Since Calhoun also did not like Adams he refused to exercise his power to bring Randolph’s remarks to a close. In 1828 the Senate revised their rules by requiring that all debate must be relevant to the question, but they did not eliminate the power of the presiding officer to limit debate.

That changed in 1872 when Vice President Schuyler Colfax ruled that “under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending matter.” At that point, then, unlimited debate on an issue became a real possibility. Real filibusters became an important tool for the minority.

Thus it stood until 1917 when Senate Rule 22 was adopted at the urging of President Wilson. The rule, which became known as the cloture rule, permitted the ending of debate on an issue with a two-thirds majority vote. The rule was first tested in 1919 when cloture was invoked to end debate in the Senate on the acceptance of the Treaty of Versailles, which ended World War I.

However, since a two-thirds majority was difficult to obtain, the use of the real filibuster increased. There are many famous instances and interesting stories regarding filibusters in the Senate over the next 50 years.

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The Declamation Variations

One could say Declamation is not an event widely practiced. Some leagues offer it all season, some for special tournaments, and many leagues put restrictions on who can participate in the event (for instance, Declamation is often reserved for freshmen and sophomores). Due to this discrimination, the rules for this event are few. Namely, when it comes to what qualifies as a Declamation most rules come to the conclusion that the any previously written (thus published) and then performed in public speech meets requirements. With such a broad definition, venues to locate a Declamation are varied and often endless. Here is a list of popular ways to find a piece:

* Classic, Historical Speeches. A staple to Declamation, looking at speeches that have become memorable moments in history often lead you to well-written works that have lasted through time for a reason. Most have a strong message, good support, wonderful rhetoric, and a powerful call to action. They lend themselves to being performed. Be warned though. Try to avoid such well-known pieces you are sure to falter with everyone’s own vision for the speech; or worse, the video people hold in their memories of the original speaker! Also, be sure that the message is still relevant to today’s society.

* Commencement Speeches. These speeches are often full of empowering encouragement, warnings for turbulent trials ahead, and the promise of success if one trudges on with determination. What makes these speeches interesting to sift through is the magnitude of who delivers them – there is practically a speaker for every mood. Comedians, politicians, actors, activists, etc. all are the various type of people asked to deliver these speeches. Ergo, a Declamation performer is given the chance to choose a speech with humor or one strictly serious. The only catch is because most commencement speeches follow a similar outline, originality may be difficult to find.

* Political Debates and Human Rights Speeches. These can be anything from a Presidential address to a public speech delivered at a rally as a call to action. Any political or historical icons you admire? Research them and see what public records hold of past public appearances or speeches they have done. Check out records of historical Congressional debates as well and see if any deliberations or filibusters strike interest.

* Courtroom Speeches. Often at trials a lawyer will deliver an eloquent speech to save an innocent or society. Why should you care? Anything happening in a courtroom is documented by the Court Reporter. Even better, these recordings are open for public access. A good Declamation might be found in the recordings of a popular court case.

Of course, there are many other places to look for a Declamation. A motivational speech, an awards speech, a public announcement, ANYTHING that has been performed publicly for a wide audience can qualify. It is recommended to check your local league for specific rules on what is considered a true Declamation piece prior to even researching. But these areas are a good place to begin your search once you know the particulars.

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The Republican Pledge – A Plan To Create Jobs?

The Republican Party this week issued its Pledge To America. The sub-title suggests that it is somehow a new governing agenda built on the priorities, principles, and values of our nation. It is neither new, nor founded on anything like America’s founding principles and values. It contains so many distortions and misrepresentations and half-truths that it is hard to decide where to start.

The first thing that the Republican pledge purports to be is a plan to create jobs, end economic uncertainty, and make America more competitive. The misrepresentations ensue. The plan outlines the Republican talking points: the government’s heavy handed approach to our economy must end, jobless claims continue to soar, and it’s time to end the “liberal Keynesian experiment” that prevents employers from investing in our economy. Here’s some reality.

The Federal government did need to step in and take immediate action to save the economy during the final months of the Bush administration, and in the first months after President Obama was sworn in. The reason was that our economy was on the brink of complete collapse. Republican assertions notwithstanding, the bailouts and stimulus were game changers.

Fortunately for the American people, Ben Bernanke, a student of American economic history, was at the helm at the Federal Reserve, and he, along with officials at Treasury understood that the error made during the Great Depression of the 1930s was that the government did not move far or fast enough. Even President Bush, who contributed mightily to getting us into this mess, should at least be credited for knowing when to get out of the way and let smarter people than he fix what he had broken.

The assertion that weekly initial jobless claims continue to soar is just not factual. Weekly first-time jobless claims are down approximately 15 to 20 percent from a year ago, and they fluctuate week to week. Recently reported weekly fluctuations have suggested a further downward trend.

The “liberal Keynesian experiment” the Republicans are ranting about is, simply put, the very same fiscal policy that the government has used effectively for about 70 years to reduce the impact of economic downturns on American workers and the American economy. The idea being that when we go into a recession — which means that people and businesses are experiencing hardships that lead them to spend less — the government steps in to buy goods and services to keep the problem from getting worse. The alternative is a downward spiral — unemployed workers and declining businesses reduce spending further, and that leads to more layoffs and a further decline in economic activity.

The Republican rant also includes the bizarre assertion that the “constant threat” of new taxes somehow prevents investors and entrepreneurs from putting capital at risk. Guess they don’t understand capitalism 101. Investors and entrepreneurs definitely don’t like economic uncertainty, or increased taxes.

After the Midterms: An Ominous Sign of What’s to Come

For anyone who’s been following politics seriously during the past few years, this should come as no surprise. Such behavior fits right into the “FOX News logic” paradigm that has come to dominate the conservative agenda. To name a few examples, they say they want to reduce spending and then demonize Obama for cutting subsidies to the private Medicare Advantage program by falsely asserting that the President seeks to gut Medicare. They say they want to fix budget deficits and support permanently extending the Bush tax breaks for everybody, which will cost roughly $3.6 to 3.9 trillion over the next decade. And they say they want to help small businesses even though they voted against Obama’s small business lending bill, which cut taxes for and pumped billions of dollars worth of loans into small businesses.

This sounds like a story you’d hear in The Onion. All I have to say is that America will get what it deserves. For two years the American people allowed radical psychopaths to dominate the political narrative with lies about government takeovers and death panels. The real story was how the Republican minority opposed every Obama initiative even when it came to conservative priorities, such as tax cuts and mandatory high risk insurance exchanges, all the while abusing the filibuster in ways that had previously been unimaginable during a time plagued by crises. This is what makes laughable the now popular notion that by voting Republican we’re more likely to see cooperation in Congress. Considering that cutting programs that don’t even exist is the Republicans’ idea of how to tackle the budget deficit, we’re in for a rough two years.

After a hysteria-filled campaign about the dire need to cut deficits, Republicans have finally announced an initiative. As Jackie Calmes of the New York Times reports, the Republican Study Committee issued a statement last week emphasizing that “Washington needs to get serious about cutting spending” and consequently unveiled their plan to terminate a program that already ended on September 30, saving $25 billion over ten years, according to their calculation.

The program, part of Obama’s Stimulus package, provided states with $5 billion over two years to bolster welfare and employment initiatives to help cope with the economic crisis. Considering that unemployment remains near 10%, House Democrats voted to continue the fund, but the Senate blocked the bill.

In Presidential Politics, The More Things Change The More They Stay The Same

As we rapidly approach the end of the second year of the Obama administration, it is a good time take an in-depth look and see if the President delivered on the “change we can believe in” campaign promise. This analysis was prompted by an Associated Press article on September 27, 2010 which reviewed the comments the President made on a recent broadcast interview on the Today Show as it related to public education in this country.

The President’s thoughts included the following:

– “The idea of a longer school year, I think, makes sense.”

– The President admitted that his daughters could not get the same quality education at a public school than what they are currently getting in a private school. He did admit that the struggling D.C schools have “made some important strides over the last several years to move in the direction of reform.”

– He said that he wants to work with teachers’ unions but warned that they should not defend a status quo in which one third of U.S. children drop out of school, challenging them not to be resistant to change.

– The President also endorsed the firing of teachers who are low performers.

These are all great ideas…. if you are running for office. Of course longer schools years make sense. Kids would not forget as much during the summer plus, while U.S. kids go to school about 180 days a year, most of the rest of the world goes to school 10% more or about 197 days a year. While D.C. schools have made some strides recently, the American Federation Of Teachers union recently spent $1 million to help defeat the D.C. mayor who supported the changes to the status quo that resulted in those improvements. While the schools improved, the defeated mayor, Adrian Fenty oversaw the firing of 200 teachers for poor classroom results. Thus, it does not look like the unions are on board yet with the President.

The President still talks a good show but the results leave everything to be desired. His words are good on education reform, but he has not put forth any concrete plans to improve the dismal performance of public schools in this country. He “thinks” that a longer school year makes sense but apparently has no plans to see if that assumption is true. He “wants” to work with the teachers’ unions but apparently has no plan to see how the cooperation might take effect. He “endorses” the firing of low performing teachers but apparently has no plan to determine how to define what low performance is.

To solve a problem, you first need to identify the root causes of the problem, determine what desired solution you want, determine what resources are needed to attain the solution, and put together a work plan and schedule to attain that solution. Politicians of all kinds they never use this process. Their only process is what is the easiest way to look like they are solving problems that nets them the most votes in the next election, regardless if the problem ever gets solved. Or as Karl Marx once said: “The oppressed are allowed every four years to decide which representatives of the oppressing class are to represent and oppress.”