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.

Famous Filibusters in Political History

The filibuster as a political delaying tactic has been a part of the American political process since the adoption of the U.S. Constitution. Though it was not used in the early years of the nation, the filibuster has been used hundreds of times since the 1840’s. Here are a few of the famous filibusters from our political history.

The U.S. Constitution does not limit the length or nature of debate on the floors of the Senate or the House of Representatives. The House has since adopted rules which limit the length of debate since the House has a very large number of Representatives. But the smaller Senate has always upheld the right of a recognized Senator to debate an issue for as long as he or she wishes to hold the floor. Senate Rule 19 and Rule 22, the cloture rule adopted in 1917, create some guidelines for conducting a debate and for closing the debate when it becomes lengthy.

Senator Henry Clay

In 1841 Senator Henry Clay proposed a bank bill that was opposed by Senator John C. Calhoun who began a lengthy, seemingly unending, rebuttal. Calhoun basically created the modern filibuster. Clay threatened to change the Senate rules in order to close debate on the issue. Clay’s colleague, Thomas Hart Benton, rebuked Clay and accused him of trying to stifle the Senate’s right to unlimited debate.

Through the next few turbulent decades and into the 1960’s the filibuster was used often by Southern Democrats to block civil rights legislation. The filibuster had been seen by the minority party as a tool to combat the potential “tyranny of the majority,” but the frequent usage of the filibuster by the Southern Democrats became characterized as the “tyranny of the minority.”

Senate Rule 22

President Woodrow Wilson suggested that some limits be placed on the unlimited debate concept. In 1917 the Senate adopted Senate Rule 22, now known as the “cloture” rule. The new Rule 22 provided the mechanism to close out debate on a legislative bill and bring the bill up for a vote if cloture was approved by 67% of the Senate. The 67% requirement remained in effect until 1975 when Rule 22 was amended to allow a 60% agreement to invoke cloture.

Cloture Rule 22 was tested in 1919 when the Senate was asked to ratify the Treaty of Versailles, which ended World War I. The treaty was debated and filibustered, but a 67% majority voted to end the filibuster and to bring the treaty to a vote.

Senator Huey Long

Senator Huey Long, the fiery and colorful senator from Louisiana, made the filibuster famous between 1932 and 1935 when he utilized it several times to stall legislation that he considered unfair to the poor. Long frustrated his opponents and entertained the Senate gallery by reading Shakespeare, reciting shrimp and oyster recipes and talking about “pot-likkers.” An amendment to Senate Rule 19 later required that debate on legislation be germane to the issue being debated.

On June 12, 1935, Senator Long engaged in his most famous filibuster. A bill was before the Senate to eliminate the provision for the Senate to confirm senior National Recovery Act employees. Senator Long opposed the bill because he didn’t want his political adversaries in Louisiana to obtain lucrative N.R.A. jobs. Senator Long spoke for 15 hours and 30 minutes running well into the evening and early morning hours with senators dozing at their desks. Long read and analyzed each section of the Constitution, a document which he claimed had become “ancient and forgotten lore” under President Roosevelt’s New Deal.

The Senate Filibuster: The Hulk Plan and the Nuclear Option

The partisan feuding in the U.S. Senate over federal judicial nominees is leading to a battle on the Senate floor that will have long term effects on the makeup of the federal courts and on the future of the filibuster as a tool in the Senate. The battle has been brewing for quite some time.

The Hulk Plan

Two years ago Senator Ted Stevens of Alaska, upset over the blockage of another of President Bush’s judicial nominees, Miguel Estrada, held an impromptu meeting with a small group of Republican Senators. He described a plan whereby the filibuster against federal judicial nominees could be blocked with a simple majority of 51 votes, rather than the 60 votes needed to invoke cloture under Senate Rule 22.

The bold and unprecedented plan was dubbed, “the Hulk plan,” a reference to the tie that Senator Stevens was wearing which depicted the green comic hero, The Hulk. The Hulk plan was discussed among Republicans and guarded from Democrats as it was not immediately determined whether the Hulk plan was workable or desirable.

The core of the plan was to introduce a Point of Order after a filibuster had begun, asking that debate be limited and that a vote be taken. After the presiding officer sustains the Point of Order, an appeal would be entered, and a motion would be made to table the appeal. This would be a procedural issue which could not be filibustered and which would require only a simple majority for approval. The approval would specify a limited time frame for debate and bring the issue to a vote.

The Nuclear Option

Within a few weeks of the development of the Hulk plan, Senator Trent Lott of Mississippi coined the term, “nuclear option” to describe the rule change process. The Senators realized that the plan would be like a nuclear explosion, resulting in increased alienation of the Democratic and Republican parties and numerous unpredictable consequences.

The Republican leadership realized that they might not be able to produce the 51 votes needed to make the “nuclear option” work, so they set the plan aside until after the 2004 national elections. The elections produced an increased Republican majority in the Senate of 55 Senators. When a straw poll among Senators convinced the Republicans that they could count on at least 51 votes, the Hulk plan was revived.

No Turning Back

President Bush will re-nominate several judicial nominees who were blocked in the last session of Congress. If the Hulk plan, or “nuclear option,” is triggered and successfully upheld, there will be no turning back for the Republicans.

When Justice Abe Fortas was nominated by President Johnson in 1968 to replace Chief Justice Earl Warren, the Republicans successfully filibustered the nomination, causing President Johnson to withdraw the nomination. If the “nuclear option” is successfully used to prevent the Democratic Senators from using the filibuster to block federal judicial nominations, then the Republicans will also find themselves without the filibuster tool in the future when they are the minority party.