United States Government’s Reactions to U.S.-Cuba Reconciliation

After looking at international and Cuban reactions to the December 17th announcement of U.S.-Cuba reconciliation, we now examine the reactions by the U.S. Government’s Executive Branch and Congress. A subsequent post will look at the reactions of the American people.

I. Executive Branch.

Led by President Barack Obama, the Executive Branch engaged in 18 months of secret negotiations with Cuba that resulted in the December 17th announcement of an accord between the two countries involving immediate release of certain prisoners, promised liberalization of U.S. regulations regarding U.S. exports to the island and U.S. citizens travel to Cuba, promised U.S. review of its designation of Cuba as a “State Sponsor of Terrorism” and further negotiations for reestablishment of normal diplomatic relations and for resolution of a long list of issues or disputes.

The U.S. Department of State immediately commenced review of the “terrorism’ designation and the Treasury and Commerce Departments in January announced the new and more liberal regulations regarding exports and travel.

The U.S., represented by Assistant Secretary of State Roberta Jacobson, participated in the first round of further negotiations with Cuba in Havana in January, and the second round will be this month in Washington, D.C.

In addition, as we will see in the discussion of reactions in the U.S. House of Representatives, bills have been introduced to end the U.S. embargo of the island.

In short, the U.S. is doing everything it can to further the progress toward normalization of relations and reconciliation of the two countries.

II. U.S. Congress

The following analysis of the positions of senators and representatives on reconciliation obviously is incomplete since I was not able to conduct exhaustive research on all 100 senators and all 435 representatives. I also used my judgment to assign pending bills as favoring or opposing reconciliation and assumed, absent specific information to the contrary, that being a sponsor or cosponsor of a bill in one category would preclude that individual’s voting for some or all of the bills in the other category. Moreover, the named individual legislators may change their minds if and when any of these measures reach the chambers’ floors for votes. I earnestly entreat readers to provide comments with other information to correct or supplement this analysis.

A. U.S. Senate

Of the 100 Senators, 25 so far appear to support reconciliation while 27 do not. The other 48 Senators apparently have not yet taken positions on this major issue.

1. Favoring reconciliation

As of February 10, I was surprised to discover that the Senate does not have a bill to abolish the U.S. embargo of Cuba. Minnesota’s Senator Amy Klobuchar clearly has stated her intent to offer and support such a bill, but has not done so to date because she believes that the Senate first should vote on confirmation of an ambassador to Cuba, who has not yet been nominated by the President. Moreover, Cuba’s President Castro has made noises that abolishing the embargo should come before restoration of normal diplomatic relations. As a result, Klobuchar’s legislative strategy may have to be revised.

In any event, as of February 10, the Senate had only two measures on its agenda that are at least tangentially favorable to the recent U.S.-Cuba accord.

The first is S.299 (Freedom to Travel to Cuba Act of 2015) offered by Senator Jeff Flake (Rep., AZ) with 13 cosponsors [1]  It was referred to the Foreign Relations Committee.

The other is a proposed resolution (S.RES.26: Commending Pope Francis for his leadership in helping to secure the release of Alan Gross and for working with the Governments of the United States and Cuba to achieve a more positive relationship). It was offered by Senator Richard Durbin (Dem., IL) with 10 cosponsors, four of whom were not cosponsors of S.299 [2]  The proposed resolution was referred to the Foreign Relations Committee.

In addition to these 18 senators, the following seven (for a total of 25) can also be regarded as supporters of reconciliation based upon statements on their official websites or other comments or actions mentioned in the press: Tammy Baldwin (Dem., WI), Chris Coons (Dem., DE), Al Franken (Dem., MN), Chris Murphy (Dem., CT), Rand Paul (Rep., KY), Pat Roberts (Rep., KS) and Harry Reid (Dem., NV).

Thus, at least 25 Senators are on record apparently supporting reconciliation with Cuba

2. Opposing reconciliation

As of February 10, the Senate had on its agenda one substantive bill relating to Cuba that can be seen as indirectly opposed to reconciliation.

S.165 (Detaining Terrorists To Protect America Act of 2015) would extend and enhance prohibitions and limitations with respect to the transfer or release of individuals detained at the U.S. Naval Station, Guantanamo Bay, Cuba.This bill was referred to the Armed Services Committee. It was offered by Senator Kelly Ayotte (Rep., NH) with 26 Republican cosponsors [3] One of the cosponsors, however, is Senator Jerry Moran, who was a cosponsor of S.299 and who spoke in favor of ending the embargo at the launch of the United States Agricultural Coalition for Cuba. Thus, I believe that only 25 of these cosponsors can be counted in the anti-reconciliation camp.

At least one other Senator belongs in this camp. Senator Robert Menendez (Dem., NJ), who is a Cuban-American, is vehemently opposed to reconciliation as are the other two Cuban-American Senators–Ted Cruz (Rep., TX) and Marco Rubio (Rep., FL), both of  whom are cosponsors of S.165.

Thus, at least 27 Senators are on record apparently opposing reconciliation.

B. U.S. House of Representatives

There are at least 43 representatives favoring reconciliation while 52 do not. That leaves the other 340 representatives not accounted for.

1. Favoring reconciliation

As of February 10, the House had eight pending bills favorable to reconciliation with Cuba.

The following three seek to end the U.S. embargo of Cuba.

  • The leading one seems to be H.R.403 (Free Trade with Cuba Act) that was introduced by Representative Charles Rangel (Dem., NY) with 27 Democratic cosponsors [4] It has been referred for consideration to the House Foreign Affairs and six other committees.[5] The bill would end the embargo, and its  section 2 would have Congress find that “Cuba is no longer a threat to the [U.S.] or Western Hemisphere;” the U.S. ” is using economic, cultural, academic, and scientific engagement to support its policy of promoting democratic and human rights reforms [in other Communist regimes];” and the U.S. “can best support democratic change in Cuba by promoting trade and commerce, travel, communications, and cultural, academic, and scientific exchanges.”
  • The other two similar bills to end the embargo are H.R.274 (United States-Cuba Normalization Act, 2015) by Rep. Bobby Rush (Dem., IL) without any cosponsors, and H.R.735 (To lift the trade embargo on Cuba, and for other purposes) by Rep. Jose Serrano (Dem., NY) with Rep. Rangel as a cosponsor, both of whom are on the record as supporters of of H.R.403. These bills too were referred to the same seven committees for consideration.

 Rep. Rangel on February 2nd also introduced H.R.635 (Promoting American Agricultural and Medical Exports to Cuba Act of 2015) to facilitate the export of U.S. agricultural products to Cuba, to remove impediments to the export to Cuba of medical devices and medicines, to allow travel to Cuba by U.S. legal residents, to establish an agricultural export promotion program with respect to Cuba. With 25 of the same Democratic cosponsors, the bill was referred to the Foreign Affairs and four other committees.

There are two bills to expand U.S. residents ability to travel to Cuba. Rep. Rangel on February 2nd introduced H.R.634 (Export Freedom to Cuba Act of 2015) with 25 of the same Democratic cosponsors of H.R.403 plus John Garamendi (Dem., CA) and Mark Pocan (Dem., WI). It has provisions for freedom to travel to Cuba for U.S. citizens and legal residents.It was referred to the Foreign Affairs Committee. A similar bill to expand U.S. citizens travel to Cuba (H.R.664: Freedom to Travel to Cuba Act of 2015) was offered on February 2nd by Rep. Mark Sanford (Rep., SC) with 12 cosponsors.[6] It also was referred to the Foreign Affairs Committee.

A more limited travel bill was introduced by Representative Jose Serrano (Dem., NY). It is H.R.738: To waive certain prohibitions with respect to nationals of Cuba coming to the United States to play organized professional baseball. Its sole cosponsor is Representative Rangel and was referred to the Foreign Affairs Committee.

On January 27th Minnesota’s Representative Betty McCollum introduced H.R.570 (Stop Wasting Taxpayer Money on Cuba Broadcasting Act) to stop Radio Marti and Television Marti broadcasts to Cuba. McCollum was a cosponsor of H.R.403 while HR. 570 has no cosponsors. It was referred to the Foreign Affairs and Judiciary Committees.

I am proud to say that all five Democratic Representatives from Minnesota by offering or cosponsoring bills appear to be in favor of this reconciliation. In addition, two of Minnesota’s three Republican Representatives have made statements indicating at least receptivity to favoring the reconciliation, and this analysis counts them as undecided. [7]

Our newest Representative Tom Emmer said, “By all accounts the Cuban people are worse off today than when [the embargo] started. So clearly that’s not working. And I’m supportive of engaging in diplomacy, starting to re-engage in diplomatic relations with Cuba, to begin that process to hopefully someday getting to normalize that relationship. But it’s two separate things. One, it’s diplomacy, and down the road is normalization.” In addition, as a member of the House Foreign Affairs Committee, Emmer focused on three issues in questioning Administration witnesses: reparations for Cubans who have been persecuted by the Castro regime, payments for U.S. interests that lost property to the regime and safe harbor of U.S. fugitives within Cuba. Emmer also said or suggested if certain conditions are met he could support ending the embargo.

Another Minnesota Republican Representative, Rep. Erik Paulsen, said, “We should be looking at opportunities to open up trade between the United States and Cuba so we can export more American goods and services. However, the President should have engaged Congress before making concessions to the Cuban government.” (Id.) It may also be significant that his district includes the headquarters of Cargill Incorporated, the leader of the United States Agricultural Coalition for Cuba

Thus, there are at least 40 Representatives who appear to be in favor of this reconciliation with differing levels of commitment.

2. Opposing reconciliation

There are two pending bills, both relating to Guantanamo Bay, Cuba that can be seen as opposing reconciliation, as of February 10.

The first is H.R.654 (Naval Station Guantanamo Bay Protection Act). It was introduced by David Jolly (Rep., FL)  with 36 Republican cosponsors, none of whom is from Minnesota. [8] It was referred to the Foreign Affairs Committee.

The other bill (H.R.401: Detaining Terrorists to Protect America Act of 2015) which would prohibit the release or transfer of certain Guantanamo Bay detainees and the construction or modification of any other facility to house such detainees. It was offered by Representative Jackie Walkorski (Rep., IN) with 29 Republican cosponsors, of whom 17 were not cosponsors of H.R.654. [9] It was referred to the Armed Services Committee.

Accordingly there are at least 54 Representatives on the record against reconciliation. Three of them are Cuban-Americans (Carlos Curbello, Mario Diaz–Balart and Ileana Ros-Lehtinen) with the latter two being the most vocal in their persistent criticism of reconciliation. Another Cuban-American Representative (Albio Sires (Dem., NJ)) has not been an author or cosponsor of any of these bills, but his website includes a rejection of the President’s decisions to seek reconciliation with Cuba. [10]

III. Conclusion

As a supporter of reconciliation, I am anxious that this year both houses of Congress abolish the embargo and support other measures to promote that reconciliation. Therefore, I urge all supporters to say thank you to those legislators who already are on our side, to identify the “undecided” legislators and seek to persuade them to become supporters and to inform our fellow citizens of the important issues in this controversy and to seek to persuade them to be supporters.

=============================================

[1] The 13 cosponsors of S.299 are the following: John Boozman (Rep., AR), Barbara Boxer (Dem, CA), Thomas Carper (Dem., DE), Susan Collins (Rep., ME), Richard Durbin (Dem., IL) ), Michael Enzi (Rep., WY), Amy Klobuchar (Dem., MN), Patrick Leahy (Dem., VT), Jerry Moran (Rep., KS), Jack Reed (Dem., RI), Debbie Stabenow (Dem., MI), Tom Udall (Dem., NM) and Sheldon Whitehouse (Dem., RI). Senator Moran also spoke in favor of ending the embargo at the launch of the United States Agricultural Coalition for Cuba.

[2] The four cosponsors of S.RES.26 who were not cosponsors of S.299 are the following: Sherrod Brown (Dem., OH), Benjamin Cardin (Dem., MD), Tim Kaine (Dem., VA) and Barbara Mikulski (Dem., MD). 

[3] The 26 Republican cosponsors of S.165 are the following: John Barrasso (WY), Roy Blunt (MO), John Boozman (AR), Richard Burr (NC). John Cornyn (TX), Tom Cotton (AR), Ted Cruz (TX), Joni Ernst (IA), Deb Fischer (NE), Lindsey Graham (SC), Orrin Hatch (UT), James Inhofe (OK), Johnny Isakson (GA), Ron Johnson (WI), Mark Kirk (IL), James Lankford (OK), Mike Lee ((UT), John McCain (AZ), Jerry Moran (KS), Pat Roberts (KS), Mike Rounds (SD), Jeff Sessions (AL), Dan Sullivan (AK), Thom Tillis (NC), Pat Toomey (PA) and Roger Wicker (MS).

[4] The 27 Democratic Representative cosponsors of H.R.403 are Karen Bass (CA), William Clay (Mo), Steve Cohen (TN), John Conyers, Jr. (MI), Keith Ellison (MN), Sam Farr (CA), Chaka Fattah (PA), Raul Griaiva (AZ), Jared Huffman (CA), Sheila Jackson Lee (TX), Eddie Johnson (TX), Henry Johnson (GA), Barbara Lee (CA), Betty McCollum (MN), Jim McDermott (WA), Gregory Meeks (NY), Gwen Moore (WI), Rick Nolan (MN), Eleanor Holmes Norton (DC), Collin Peterson (MN), Jared Polis (CO), Janice Schakowsky (IL), Bennie Thompson (MS), Tim Walz (MN) and Maxine Waters (CA).

[5] A prior post listed the members of the seven House committees that have jurisdiction over different portions of the three bills to end the embargo.

[6] The 12 cosponsors of H.R.664 are Kathy Astor (Rep., FL), Jason Chaffetz (Rep., UT), Kevin Cramer (Rep., ND), Rosa DeLauro (Rep., CT), Sam Farr (Dem., CA), Barbara Lee (Dem., CA), Thomas Massie (Rep., KY), James McGovern (Dem., MA), Charles Rangel (Dem., NY), Chris Van Hollen, (Rep., MD), Nydia Velazquez (Dem., NY) and Peter Welch (Dem, VT).) Of this group, eight were not sponsors or cosponsors of H.R.403 (Chaffetz, Cramer, DeLauro, Massie, McGovern, Van Hollen, Velazquez and Welch). Cramer also announced his support for ending the embargo at the launch of the U.S. Agricultural Coalition for Cuba.

[7] Henry, Emmer on Cuba embargo: ‘Clearly that’s not working, MINNPOST (Feb. 6, 2015). The third Minnesota Republican Representative, John Kline, appeared to be less receptive to ending the embargo. He said he’s “not confident the Administration will follow through on its promises to hold the Castro dictatorship regime accountable, and I’m concerned about revisiting relations with Cuba until all Cubans enjoy a free democracy.”

[8] The 36 Republican cosponsors of H.R.654 are Gus Bilirakis (FL), Michael Burgess (TX), Bradley Byrne (AL), Jason Chaffetz (UT), Mike Coffman (CO), Carlos Curbello (FL), Rodney Davis (IL), Ron DeSantis (FL), Mario Diaz-Balert (FL), Bill Flores (TX), Trent Franks (AZ), Louie Gohmert (TX), Trey Gowdy (TN), Andy Harris (MD), Richard Hudson (NC), Duncan Hunter (CA), Darrell Issa (CA), Bill Johnson (OH), Jeff Miller (FL), Alexander Mooney (WV), Richard Nugent (FL), Gary Palmer (AL), Robert Pittenger (NC), Bill Posey (FL), Reid Ribble (WI), Ileana Ros-Lehtinen (FL), Keith Rothfus (PA), Matt Salmon (AZ), Austin Scott (GA), Marlin Stutzman (IN), Jackie Walorski (IN), Randy Weber (TX), Roger Williams (TX), Joe Wilson (SC), Ted Yoho (FL) and Ryan Zinke (MT). Diaz-Balert and Ros-Lehtinen are Cuban-Americans who have been and are most vocal in their criticism of reconciliation. Rodney Davis, however, spoke in favor of ending the embargo at the launch of the United States Agricultural Coalition for Cuba and should not be viewed as completely hostile to reconciliation.

[9] The 29 Republican cosponsors of H.R.401 are Andy Barr (KY), Susan Brooks (IN), Bradley Byrne (AL), Mike Coffman (CO), Paul Cook (CA), Ander Crenshaw (FL), Trent Franks (AZ), Andy Harris (MD), Jaime Herrera Beutier (WA), Duncan Hunter (CA), Darrell Issa (CA). Sam Johnson (TX), Doug Lamborn (CO), Robert Latta (OH), Luke Messer (IN), Mick Mulvaney (IN), Richard Nugent (FL), Steven Pearce (NM), Robert Pittenger (NC), Ted Poe (TX), Mike Pompeo (KS), Todd Rokita (IN), Aaron Schock (IL), Austin Scott (GA), Christopher Smith (NJ), Brad Wenstrup (OH), Joe Wilson (SC), Robert Wittman (VA) and Ryan Zinke (MT). Of these cosponsors, 16 (Barr, Brooks, Herrera, Sam Johnson, Lamborn, Latta, Messer, Mulvaney, Pearce, Poe, Pompeo, Rokita, Schock, Smith, Wenstrup and Wittman) were not cosponsors of H.R.654.

[10] Hook, Exile Haunts Cuba-American Lawmakers, W.S.J. (Dec. 20-21, 2014).

U.S. Senate Democrats Unwisely Re-elect Harry Reid as Leader

Senator Harry Reid
Senator Harry Reid

Today, November 13th, the Senate Democrats re-elected Senator Harry Reid as their leader, now Minority Leader, for the next Session of Congress starting in January. [1]

Although the voting was by secret ballot, it was not unanimous. At least four of the Senators rejecting Reid have been identified: Claire McCaskill of Missouri, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Mary Landrieu of Louisiana. McCaskill said, “When you have an election like this, common sense says we need to change things. The voice was very loud and unmistakable. To me that means changing leadership, and it was just that simple.” Heitkamp added, “This was a change election. I think that we needed to demonstrate that we heard the American public.”

Over the last several months, these four were part of a group of about 10 more junior Democratic senators have begun more openly registering their dissatisfaction with Mr. Reid’s approach. Others include Senator Angus King of Maine and Senator Jon Tester of Montana.

The leadership votes went ahead after several in the caucus asked for a delay to give them an opportunity to consider others for the leadership posts.

Senator Reid apparently responded to these negative views of his leadership by appointing Senator Elizabeth Warren of Massachusetts as the Caucus’ Strategic Policy Advisor, Senator Amy Klobuchar of Minnesota to chair a caucus committee that handles outreach to outside allies and activists and Senator Tester as Chair of the Democratic Senatorial Campaign Committee.

As a Democrat, I think the re-election of Reid is a horribly unwise. I have cringed every time Reid appears on television as the voice of the Senate Democrats. He comes across as tired, old, cranky, dull, weak and unpersuasive. When he appears on television with the Republican leader, Senator Mitch McConnell, soon to be the Majority Leader, the personal animosity between the two often is apparent. The Democrats and the country do not want to see a continuation of this outworn drama.

Senator Amy Klobuchar
Senator Amy Klobuchar

As a Minnesotan, I believe our Senator Amy Klobuchar would be an excellent new Minority Leader. She would be a fresh face, younger (age 54) and female in sharp contrast to McConnell. She also has a record of being able to get along with Republicans in the Chamber. In the final debate this year for Minnesota’s other U.S. Senate seat, the unsuccessful Republican candidate, Mike McFadden, frequently praised Klobuchar and said “I’m here to say Amy Klobuchar sets the bar for work ethic and authenticity.”

Scott Lehigh, a Boston Globe columnist, said the 74-year old Reid “should announce that when this session of Congress ends, [he] will relinquish [his] role as leader of [the] . . . Democratic [caucus].” Reid is a “tired face, stale voice, entrenched presence in Washington. . . . After a certain period, congressional leaders’ caricatured images get so ingrained that they become electoral liabilities for their parties.” (Lehigh makes the same argument about why Nancy Pelosi should not be the Democratic leader of the House in the new Congress, but that is an argument for another day.)

Another columnist in the Wall Street Journal, Gerald Seib, posed a similar question, “Where are the [Democrat] party’s fresh young leaders?” But he assumed that Reid would be the new Minority Leader, and instead mentioned Senator Elizabeth Warren as a potential national leader of the party along with “highly capable younger Democrat [Senators]:” Mark Warner, . . . a 59-year-old moderate from a key swing state, as is Colorado’s 49-year-old Michael Bennet. New York Sen. Kirsten Gillibrand, 47, is a rising star.”

I have no quarrel with any of these prominent Democratic Senators, and any of them would change the public persona of the Senate Democrats, but I point out that they have less experience in the Senate than Senator Klobuchar’s eight years: Warner (six years), Gillibrand (six years), Bennet (four years) and Warren (two years).

Here is a personal plea to Senator Reid. Wake up. Give someone else the opportunity to lead. Do not be a liability to your party. Stand down.

==============================================

[1] This account of the re-election of Senator Reid is based upon articles in the New York Times, Washington Post, Wall Street Journal and Politico.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Judging on the U.S. Court of Appeals for the D.C. Circuit

The U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the U.S., is once again back in the news.

"Sri" Srinivasan
“Sri” Srinivasan

The immediate issue is the need for the U.S. Senate to confirm President Obama’s appointment of Srikanth “Sri” Srinivasan to one of the four vacancies on this Court.[1]

Srinivasan has a blue-chip resume. Currently he is the Principal Deputy Solicitor General of the U.S. and has argued 20 cases before the U.S. Supreme Court. He previously clerked for the Reagan-appointed Supreme Court Justice Sandra Day O’Connor. He also served with distinction in the Justice Department for both Presidents George W. Bush and Barack Obama and with the Washington, D.C. office of the eminent law firm of O’Melveny & Myers. A native of India, Srinivasan grew up in Kansas and earned a bachelor’s degree in 1989 from Stanford University and a J.D./M.B.A. degree in 1995 from its Law School and Graduate School of Business.

On April 10th Srinivasan had an uneventful 90-minute hearing before the Senate Judiciary Committee. His nomination is strongly supported by the Obama Administration and by noted conservative and liberal lawyers and academics.

The next step is for the Committee to vote on whether to send this nomination to the Senate floor for a vote. At least one of the eight Republican members of the Committee, Orrin Hatch, said he was impressed and would support such a motion. Assuming all 10 Democratic Committee members support such a motion, then it should be approved by a vote of at least 11 to 7. Then the whole Senate would vote on the nomination unless there was a filibuster of same.[2]

Perhaps the partisan wrangling over appointments to this Court is overwrought.

Senior Judge David B. Sentelle
Senior Judge David B. Sentelle

Evidence for a less partisan view of this Court is found in its April 5th Presentation Ceremony of the Portrait of D.C. Circuit Senior Judge David B. Sentelle, who was appointed to the Court in 1987 by Republican President Ronald Reagan. For remarks of appreciation from his own Court, Judge Sentelle chose Circuit Judge David S. Tatel, who was appointed by Democratic President Bill Clinton in 1994.[3]

Judge David S. Tatel
Judge David S. Tatel

Judge Tatel commented on the apparent oddity of his speaking for Judge Sentelle.  Tatel said, “those who believe that judges’ decisions are driven by ideology may wonder why Dave [Sentelle] asked me to speak. After all, you would be hard pressed to find two judges with more different backgrounds, different worldviews, different beliefs, and, indeed, different shoes than we two Davids. But those who focus on these differences do not understand what it means to be a federal judge, do not understand this Court’s long tradition of collegiality, and surely do not understand Dave Sentelle.”  Tatel continued, “when Judge Sentelle and I sit together, we very rarely disagree.” In “the nineteen years we’ve served together, we have disagreed less than 3% of the time.”

The answer to why there had been so little disagreement, according to Judge Tatel, was “Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us. Uncommonly peppered with the hallmarks of restrained decision-making, his opinions are full of phrases like, ‘If the intent of Congress is clear, that is the end of the matter’; ‘Courts must accord substantial deference to Congress’s findings’; ‘We are bound by the decisions of the Supreme Court’; ‘One three judge panel has no authority to overrule another’; ‘We owe agency fact-finding great deference’; ‘Issues not raised on appeal are deemed waived’; and ‘Absent jurisdiction we are powerless to act.’ For Judge Sentelle, “the tenets of judicial restraint are not mere slogans to be invoked when convenient; they are the building blocks of all that we do here.”

Judge Tatel also complimented Judge Sentelle’s judicial opinions. According to Tatel, Judge Sentelle “crafts opinions that treat every one of his colleagues, as well as every citizen who appears before us, with respect and a true generosity of spirit. Flipping through his opinions, including his dissents, you’ll find no sarcasm, no belittling remarks, no callous dismissals. This is, after all, a United States Court, and Judge Sentelle’s opinions are a credit to the dignity of this institution. In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality.”

In conclusion, Judge Tatel said, Judge Sentelle is “a man who has the greatest respect for the office he holds and an abiding dedication to a life of service and the rule of law.”


[1] President Obama’s only other eminently qualified nominee to the court, Caitlin J. Halligan, was named in 2010 to fill the vacancy created by the elevation of John G. Roberts Jr. to the Supreme Court. In March of this year Republicans for a second time mounted a filibuster that prevented the Senate from voting on Ms. Halligan, and President Obama granted her request to withdraw her nomination saying, “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.” Her nomination was supported by the New York Times and Washington Post .

[2] If the Srinivasan nomination is filibustered , then Senate Majority Leader Harry Reid has threatened to modify the Senate Rules to bar such filibusters on at least judicial nominees. I frequently have voiced my strong disapproval of the filibuster rule and practice.

[3] Judge Tatel is a University of Chicago Law School classmate and friend of mine, and I have written a post about his opinion for the D.C. Circuit in the Voting Rights Act case now pending in the U.S. Supreme Court.

GOP Senators Continue To Flirt with Filibusters

This past January U.S. Senate Majority Leader Harry Reid refused to press for adoption on a simple majority vote (at least 51 of the 100 Senators) of significant, but still flawed, reforms of the body’s filibuster rule. Instead Reid and Minority Leader Mitch McConnell agreed to much weaker changes to the rule. Past posts have expressed my dissatisfaction with this rule and the recent change.

As a result, the Senate and the U.S. are still facing threatened filibusters by Senate Republicans over confirmation of presidential nominations.

Chuck Hagel
Chuck Hagel

The most recent example is the nomination of Chuck Hagel to be Secretary of Defense.

Yes, on February 26th the U.S. Senate did vote, 71 to 27, to invoke cloture and end debate on voting on confirmation of this nomination. The 71 votes came from 53 Democratic, 2 Independent and 18 Republican Senators, including Senators John McCain and Lindsay Graham, who continued to be severe critics of Hagel. (Two Democratic Senators did not vote: Mark Udall and Frank Lautenberg.)

Later that same day the Senate voted, 58 to 41, to confirm Hagel for this position. For this vote, only four Republican Senators were in the majority: Senators Thad Cochran, Mike Johanns, Richard Shelby and Rand Paul. (Senator Lautenberg did not vote.)

While I am pleased that there was no prolonged filibuster of this nomination and that the  Senate did vote on confirmation, getting there, in my opinion, was needlessly prolonged and again demonstrated the dysfunctionality of the Senate. Here are some of the reasons for that opinion:

  • In early February Democratic Senator Carl Levin, the Chairman of the Armed Services Committee, delayed a committee vote on the nomination in an attempt to garner support for same from some of the Republican committee members.
  • On February 14th, the Senate failed by one vote to invoke cloture, 59 to 40 (Majority Leader Harry Reid later switched his “Yes” vote to “No” so he could later move to reconsider cloture).
  • Republican Senators Lindsay Graham and James Inhofe had put “holds”on the nomination and thereby prevented a vote on confirmation; Graham wanted more information from the Administration about the Benghazi attack (in which Hagel had no involvement) while Inhofe fomented that Hagel was anti-Israel.
  • Chris Cillizza, a Washington Post columnist, reported that Republicans were voting against cloture because there were no political risks from doing so; they said they had legitimate doubts about Hagel’s ability to lead the Pentagon; and resistance was a Republican rallying cry.
  • Another Washington Post columnist, Jonathan Bernstein, stated that Republican Senators are insisting on a 60 vote requirement for virtually everything because many of them see no difference on cloture and substantive voting and do not require extraordinary reasons to vote against cloture.
  • Senator McCain said that one of the reasons for Republican opposition to Hagel, their former Republican Senate colleague, was his very vocal criticism of President George W. Bush over the Iraq war.
  • Some Republican Senators were opposed to Hagel for allegedly receiving money from a group called “Friends of Hamas” — a rumor that started with a joke about a nonexistent group.
  • On February 15th 15 Republican Senators wrote a joint letter to President Obama asking him to withdraw the Hagel nomination.
John Brennan
John Brennan

This dysunctionality is not over with the confirmation of Hagel. Senator McCain has threatened a similar GOP strategy with respect to confirmation of John Brennan as Director of the CIA.

Jacob J. Lew
Jacob J. Lew

On the other hand, the Senate on February 27th confirmed, 71 (including 20 Republicans) to 26, the nomination of Jacob J. Lew for Secretary of the Treasury.

And on February 25, 2013, the Senate confirmed, 93-0, Robert Bacharach to be a judge on the U.S. Court of Appeals for the District of Columbia Circuit. He, however,  had been appointed to that position in January 2012, and in the last Congress, in July 2012, clouture was defeated, 56-34.

All of this silliness over Chuck Hagel and potentially over John Brennan would have been prevented if the Senate this past January had adopted more significant reform of its rules regarding filibuster.

 

Additional Reactions to U.S. Senate’s Adoption of Modest Reforms to Its Filibuster Rule

As already reported in a prior post, the U.S. Senate on January 24th adopted modest reforms to its filibuster rule, and the initial reactions were mixed. Here are some additional reactions.

The Majority and Minority Leaders

The brokers of the actual reforms–Democratic Senator Harry Reid, the Majority Leader, and Republican Senator Mitch McConnell, the Minority Leader–issued statements afterwards.

Senator Harry Reid
Senator Harry Reid

Senator Reid said the reforms are “steps towards ending gridlock in the Senate, and making this body a more efficient place while still respecting the rights of the minority.  Americans of all political stripes can agree that Washington is not working the way it should. We were elected to get things done for the middle class – not waste time with endless stalling tactics that cause even bills with broad bipartisan support to languish for weeks. These reforms will allow us to deal with legislation in a more timely fashion, and weaken the ability of those who seek to obstruct for obstruction’s sake”
Reid added, “If these reforms do not do enough to end the gridlock here in Washington, we will consider doing more in the future.”

Senator Mitch McConnell
Senator Mitch McConnell

McConnell, on the other hand, emphasized that the bipartisan compromise package ” avoided the nuclear option, and . . . [retained the rule] that any changes to the Standing Rules of the Senate still require 67 [two-thirds] votes.” He also expressed home “the Senate can return to the way it used to operate and that all of us will be able to participate more fully in the legislative process.”

Leaders for Stronger Reforms

Senator Jeff Merkley
Senator Jeff Merkley

Senator Jeff Merkley, one of the leaders for stronger reforms, recognized that the Senate as a whole had declared “the paralysis of the Senate is unacceptable.”   The adopted reforms, he said, “are modest, and don’t address the core problem of the secret, silent filibuster, but they do include some important elements, providing flexibility on the motion to proceed and speeding up the confirmation process on nominations.”

“If these modest steps do not end the paralysis the Senate currently suffers,” Merkley added,” many Senators are determined to revisit this debate and explore stronger remedies,” and he would keep working to that end. “We have a responsibility to address the big issues facing our country. I’ll keep working with my colleagues to achieve that goal.”

In an interview, Merkley reiterated his commitment to pressing for additional reform if nothing much changes in this session of the Congress.

Senator Tom Udall
Senator Tom Udall

The other leader for stronger reforms was Senator Tom Udall of New Mexico. He said that although the adopted reforms were “not as strong what many of us have been advocating,” they did alter “the way we deal with nominations, conference committees and motions to proceed — all things I’ve been working toward.”  Udall, therefore, was “supporting . . . [the] efforts to get a bipartisan agreement today,” but would “continue to fight for the stronger filibuster reforms my colleagues and I believe will make the Senate a more accountable institution.”

Udall also emphasized that the external infrastructure for Senate reform would continue and remain vigilant and ready to  push for more action later if necessary.

Conclusion

I hope that these limited changes will make the Senate more functional.

But I am skeptical.

For example, in this new session of Congress Republicans are delaying a Judiciary Committee hearing on the President’s nomination of a very able lawyer to be a circuit court judge. The purported justification is their demand for information about the Government’s settlement of a case in which he had a minor role.

Another example is the limited changes’ failure to alter the filibuster rule for high-level presidential appointments. This week an appellate court held that President Obama violated the Constitution by making several recess  appointments to the National Labor Board, which otherwise were subject to Senate confirmation, when the Senate was not really open for business, but rather in Potemkin Village illusions of sessions. According to the New York Times, this Republican senatorial practice and the court’s decision demonstrate how the Democrats’ “timidity” on reforming the filibuster rule “is being used against them.”

 

 

 

 

 

 

 

U.S. Senate Adopts Modest Reform of Its Filibuster Rule

On January 24, 2013, the U.S. Senate adopted a bipartisan modest two-part reform of its filibuster rule. Both were adopted by over two-thirds of those voting and thereby complying with another part of its rules requiring a two-thirds vote to amend the rules.

Senators Reid & McConnell
Senators Reid & McConnell

This bipartisan reform package was brokered by Majority Leader, Democratic Senator Harry Reid of Nevada, and the Minority Leader, Republican Senator Mitch McConnell of Kentucky.[1]

The Reform

The reform has two parts.

By a 78-16 vote, the Senate adopted the first part of the package. For only the two years of this session of Congress and by standing order only, the minority Republicans will have the right to make a minimum number of amendments during floor debate, but their ability to use filibusters to prevent debate on legislation will be limited. This part also will limit dilatory tactics on lower-tiered judicial and executive branch nominees.[2]

The second part of the reform package was a permanent amendment to the Senate rules to allow prompt scheduling of legislation where there is a bipartisan consensus for passage and limit stalling tactics to prevent Senate conferees from meeting with their House counterparts to resolve differences in competing bills. This part was adopted by a vote of 86-9. [3]

This bipartisan reform eliminated the possibility of the Democratic Senators using the so called “constitutional” or “nuclear” option of changing the rules by a simple majority vote.[4]

Reactions to the Reform

President Obama
President Obama

Thursday night President Obama immediately released a statement saying he was pleased the Senate had taken action to move routine measures along. He observed that in his last State of the Union address, he had “urged Congress to take steps to fix the way they do business. Specifically, I asked them to address the fact that a simple majority is no longer enough to pass anything – even routine business – through the Senate,”

The President continued, “At a time when we face critical decisions on a whole range of issues – from preventing further gun violence, to reforming our broken immigration system, to getting our fiscal house in order and creating good paying jobs – we cannot afford unnecessary obstruction.”

President Obama also noted that the reforms “are a positive step towards a fairer and more efficient system of considering district court nominees, and I urge the Senate to treat all of my judicial nominees in the same spirit.”

Washington political commentators suggest the following reasons for the adoption of these modest reform measures, rather than the “speaking filibuster” proposal led by Senators Jeff Markey and Tom Udall:

  • very few citizens care about the filibuster and its reform, and the activists who did were not effective in rallying public opinion;
  • virtually no individual senator– especially the Majority Leader Harry Reid–wants the Senate to be like the House of Representatives which operates by simple majority rule;
  • the current Majority Leader and other Democratic senators are pragmatists and realize that in the future, perhaps as early as 2015, they could be in the minority and do not want the Republican majority to ram things through by a simple majority vote;
  • the “talking filibuster” alternative option advanced by Senators Merkley and Tom Udall was seen by many as an ineffective idea; and
  • partial bipartisan reform now may lead to more reform later.
Senator Tom Harkin
Senator Tom Harkin

Senator Tom Harkin, Democrat of Iowa and a sponsor of one of the motions to amend the filibuster rule, on the other hand, was very disappointed in this result. He said that he previously had warned President Obama that if there were no serious reform of the filibuster rule, Obama “might as well take a four-year vacation.”

Senator Merkley, one of the leaders for the speaking filibuster proposal,  said he was “disappointed with the package but noted the ‘growing momentum’ toward Senate reforms.” He “also vowed to continue pushing filibuster reforms if the Senate returns to its clogged, unproductive state of the past two years.”

The activists for reform were equally disappointed. The leader of the Progressive Change Campaign Committee said, “This is a bad decision based on fear–a decision that will ultimately hurt millions of people who would have been helped by progressive bills that the Republicans are sure to filibuster.” The political director of CREDO opined, “It looks like Senator Reid got fooled again, but sadly it’s the American people who are going to pay the price.” Another citizen reformer noted, “It changes nothing on how we move forward.” Fix the Senate Now, a coalition for reform, said it was a “missed opportunity.”


[1]  Raju & Gibson, Reid, McConnell reach Senate filibuster deal, Politico (Jan. 24, 2013); Kane, Senate leaders reach deal modifying filibuster rules, keep 60-vote hurdle, Wash. Post (Jan. 24, 2013); Slack, Obama hopeful Senate filibuster deal will pave way for meaningful action, Politico (Jan. 24, 2013); Bernstein, Why Senate reform fizzled (for now), Wash. Post (Jan. 24, 2013); Clizza, Why filibuster reform didn’t happen, Wash. Post (Jan. 24, 2013); Klein, Harry Reid:”I’m not personally, at this stage, ready to get rid of the 60-vote threshold, Wash. Post (Jan. 24, 2013); Tom Harkin: Filibuster Reform Failure Hamstrings Obama Agenda, Huff. Post (Jan. 24, 2013). The proceedings on reform of the filibuster rule are found at Cong. Rec. S247-S274 (Jan. 24, 2013).

[2] The first part of the reform was Senate Resolution 15, and its text and 76-16 roll call are found at Cong. Rec. S272 (Jan. 24, 2013).

[3] The second part of the reform was Senate Resolution 16, and its text and  86-9 roll call are found at Cong. Rec. S274 (Jan. 24, 2013).

[4] Senator Harkin’s proposal for amending the filibuster rule was defeated as was a proposed amendment to the rules offered by Senator Mike Lee (Republican of Utah). (Cong. Rec. S271 (Jan. 24, 2013).) The reform proposals offered on January 3, 2013 by Senators Tom Udall, Merkley and Lautenberg were not brought to a vote. In his remarks on the floor, Senator Carl Levin entered into the record what he described as a lengthy rebuttal of the claim that the Senate had the constitutional power to change its rules by a simple majority vote.

U.S. Senate Again Postpones Decision on Filibuster Reform

Yesterday was supposed to have been the day when the U.S. Senate would decide whether and how to reform its rules regarding the filibuster. However, it did not happen. Decision was postponed again.

The apparent reason for the delay is the desire of Senate Majority Leader, Harry Reid (Democat of Nevada), to continue discussions about a possible bipartisan, compromise reform package with Senate Minority Leader, Mitch McConnell  (Republican of Kentucky).

Manu Raju of Politico reports that the two Senators met yesterday morning on this issue. The exact details of their discussions are still unknown.[1]

But Reid apparently is pressing to eliminate filibusters preventing debate on legislation from even starting, from entering talks with the House of Representatives and from voting on certain presidential nominations, particularly district court judicial nominees. Reid also is reported to be considering requiring 41 senators to vote to sustain a filibuster, a subtle shift from the current practice that requires 60 votes to break the stalling tactic. This proposal would shift the burden on the opposing party and force the opponents to ensure all their votes are present.

McConnell, on the other hand, apparently wants to ensure that the minority has a guaranteed number of amendments if the majority chooses to speed debate. Previously Senators Carl Levin (Democrat of Michigan) and John McCain (Republican of Arizona) were leaders of a small group suggesting the minority be able to offer at least two amendments while preventing them from filibustering in a handful of situations.

After yesterday’s Senate Democratic caucus luncheon, Reid said that having the Senate decide the filibuster reform issues would be postponed 24 to 36 hours in order to allow the two leaders to continue their discussions.

However, Reid added in his public statement that if the Republicans still did not agree on this bipartisan proposal in that time period, Reid would proceed with adopting a reform measure with the so called “constitutional” or “nuclear” option whereby a simple majority of the Senate (at least 51 of the 100 Senators and all Democrats and Independents).

Yesterday afternoon Reid recessed the chamber, rather than adjourning, in order to extend the first legislative day of the session and thereby extend the time to use the “constitutional” or “nuclear” option.

In the meantime, the New York Times reiterated its editorial support for reform. It complained that over the last six years, there has been “an unprecedented abuse of the filibuster by Republicans, who have used the practice to hold up nominees high and low and require a supermajority for virtually every bill.” The newspaper also lamented that the Democrats appeared to be considering “only a few half-measures” and instead should also abolish the so called “silent filibuster.”

The Times said,Supermajorities were never intended to be a routine legislative barrier; they should be reserved for the most momentous bills, and the best way to make that happen is to require that objectors work hard for their filibuster, assembling a like-minded coalition and being forthright about their concerns rather than hiding in the shadows or holding up a bill with an e-mailed note.”

As explained in prior posts, I agree with the Times, except I would go further and abolish the filibuster altogether.