John McCain – dwkcommentaries

President Barack Obama’s First-Term Record Regarding Cuba, 2009-2013

In light of President Barack Obama’s historic December 17, 2014, announcement of rapprochement with Cuba, it is interesting to examine Obama’s earlier statements about Cuba. Prior posts examined his campaign for the Democratic presidential nomination in 2007-2008 and his campaign for the presidency as the Democratic Party’s nominee in 2008. Now we discuss his first presidential term, 2009-2013.[1] Subsequent posts will look at his reelection campaign in 2012 and his second presidential term (up to the December 17, 2014, announcement), 2013-2014.

As we saw in a prior post, Barack Obama and Joe Biden won the November 4, 2008 election with 69.5 million votes (52.9% of the total) to John McCain and Sarah Palin’s 59.9 million votes (45.7%). In the key state of Florida, Obama-Biden had 51.0% of the popular vote against McCain-Palin’s 48.4%. The electoral votes were Obama and Biden, 365; McCain and Palin, 173. Soon thereafter several head of states congratulated Obama while also calling for the U.S. to end its sanctions against Cubs.

Obama’s First Term, 2009

President Obama’s Oath of Office with Michelle Obama

Obama was inaugurated as President on January 20, 2009. His Inaugural Address first mentioned that “we are in the midst of crisis. . . . Our nation is at war against a far-reaching network of violence and hatred. Our economy is badly weakened. . . . [T]he challenges we face are real, they are serious and they are many. They will not be met easily or in a short span of time. But know this America: They will be met.” There was no mention of Latin America or Cuba.[2]

On February 25, 2009, the Department of State released its 2008 Country Reports on Human Rights Practices; the chapter on Cuba described it as a “totalitarian state” that “continued to deny its citizens their basic human rights and committed numerous, serious abuses.”

In April 2009 Obama fulfilled the pledge he made in his acceptance of the Democratic Party’s presidential nomination by lifting travel and remittance restrictions for Cuban-Americans while also authorizing U.S. telecommunications companies to contract with Cuba for improved television, radio and telephone service and Internet access.

That same month (April 2009) Obama told a journalist, “Cuba has to take some steps, send some signals that when it comes to human rights, when it comes to political rights, when it comes to the ability of Cubans to travel.” In Obama’s opinion, the previously mentioned U.S. changes called for Cuba to “send signals that they’re interested in liberalizing.”

This U.S. desire or demand for Cuban reciprocity was not well received in Havana. Cuba’s President Raúl Castro declared, “The blockade [embargo] remains intact. . . . Cuba has not imposed any sanction on the [U.S.] or its citizens. Therefore, it is not Cuba that should make gestures.” Nevertheless, “We are willing to discuss everything with the [U.S.] government, on equal footing; but we are not willing to negotiate our sovereignty or our political and social system, our right to self-determination or our domestic affairs.”[3]

Later that same month (April 2009), Obama attended the Fifth Summit of the Americas. Latin American presidents applauded the previously mentioned U.S. changes while simultaneously pressing Obama on the need to reintegrate Cuba into the inter-American community. Obama responded by reiterating his commitment to engagement, “The [U.S.] seeks a new beginning with Cuba.”

Also in April 2009, the U.S. Department of State issued its Country Reports on Terrorism 2008. Again Cuba was listed as a state sponsor of terrorism.

The next month, May 2009, the U.S. proposed to Cuba that they resume bilateral consultations on migration. Cuba agreed, and the talks took place that July. Cuba presented a draft accord to curb people smuggling and indicated an interest in also discussing cooperation on counterterrorism, counter-narcotics operations and hurricane preparation. Although no such formal agreement was reached, both sides agreed it was a productive consultation.

In June 2009 at the General Assembly of the Organization of American States (OAS), Latin American members moved to repeal the 1962 resolution suspending Cuba’s OAS membership. Facing defeat on this proposal, the U.S. negotiated a compromise: repeal the suspension if Cuba accepts “the practice, purposes, and principles of the OAS,” impliedly including the commitment to democracy in the Santiago Declaration of 1991.

In August 2009 Bill Richardson, then the Governor of New Mexico, was in Cuba on a trade mission, and at a meeting with Cuban officials was led to believe that Cuba wanted to move forward with the U.S. although Richardson said Cuba needed to reciprocate with some gestures. Cuba’s Foreign Minister Rodriguez made it clear that Cuba would not make any concessions to win better relations with the U.S. and that the U.S. blockade (embargo) was unilateral and should be lifted unilaterally.

In September 2009 an U.S. Assistant Secretary of State was in Cuba for discussions about restoring direct mail service. Over five days, she met with Cuban officials in the Justice, Agriculture, Health and Interior ministries and academics at the University of Havana as well as bloggers and dissidents. Much to the consternation of Cuban authorities, one of the bloggers was Yoani Sánchez, now an international celebrity. Nevertheless, Cuba’s Assistant Foreign Minister (Bruno Rodriguez Parrilla, now the Minister of that agency) told the U.S. official that Cuba wanted to show her their desire “to move forward in our relationship,” requiring “confidence building” as a “way forward.”

By the Fall of 2009 the White House was frustrated by Cuba’s failure to respond to the U.S. relaxing of travel and remittance restrictions for Cuban-Americans. As a result, Obama asked Spain’s Prime Minister, José Luis Rodriguez Zapatero, to have Spain’s Foreign Minister carry a back-channel message to President Rául Castro that if Cuba did not take steps of liberalization, neither could Obama and that the U.S. understands things cannot change overnight, but in the future it will be clear that this was the moment when changes began.

Castro responded with a proposal for a secret channel of communication between the two countries to discuss Cuban steps that might address the U.S. concerns. The U.S., however, at this time rejected the idea for a secret channel. (As we will see below, in December 2012, such a secret channel was opened.)

On December 3, 2009, the process of normalization was thrown off track by Cuba’s arrest of U.S. citizen, Alan Gross, who was bringing communications and computer equipment to Cuba’s Jewish community as an employee of a contractor for the U.S. Agency for International Development (USAID). Two weeks later President Castro told Cuba’s National Assembly that the U.S. alleged desire for a new relationship was “a huge propaganda campaign staged to confuse the world. The Truth is that the instruments for the policy of aggression to Cuba remain intact and that the U.S. government does not renounce its efforts to destroy the Revolution.”

By the end of 2009, therefore, things looked bleak for further normalization. Moreover, the press of many other foreign policy challenges for the U.S. pushed Cuba far down the list of priorities for the Obama Administration.

Obama’s First Term, 2010.

The arrest and jailing of Alan Gross continued to disrupt the relations of the two countries in 2010. The U.S. denied that Gross had done anything wrong and that his release from a Cuban jail was necessary for any improvement in the relationship.

The Gross arrest, however, prompted the U.S. Senate Foreign Relations Committee to investigate USAID’s Cuba democracy programs in 2010 and to develop a plan to reorient the Cuba program toward supporting genuine links between the two countries. These changes in the program were briefed for Cuban diplomats, who said it would smooth the way for the release of Gross.

On March 11, 2010, the Department of State released its 2009 Country Reports on Human Rights Practices; the chapter on Cuba described it as a “totalitarian state” that “continued to deny its citizens their basic human rights, including the right to change their government, and committed numerous and serious abuses.”

In the meantime, Spain on its own initiative in May 2010 encouraged Rául Castro and Cardinal Jaime Ortega to discuss Cuba’s lifting the ban on public demonstrations by the Ladies in White, the female relatives of political prisoners, and to the release of political prisoners. In July 2010 this resulted in the government’s agreement to release 52 such prisoners, including everyone who had been arrested in 2003, and those who wished to go into exile would be welcomed by Spain. Eventually the government released 127 such prisoners.

In June 2010 Cardinal Ortega, with the consent of the Cuban government, went to Washington, D.C. to inform them of the then planned prisoner release. The Cuban government believed this prisoner release was a major concession and should “pressure U.S. political leaders to respond with other gestures of good will toward Cuba.” Ortega also told U.S. officials that Castro was ready to talk with the U.S. directly about every issue and that it would be a mistake for the U.S.to maintain the status quo until Cuba became a democracy. ”Everything should be step by step,” the Cardinal said. “It’s not realistic to begin at the end. This is a process. The most important thing is to take steps in the process.”

Obama, however, insisted that first Cuba had to release Alan Gross from prison before the U.S. could do more. Secretary of State Hilary Clinton called the Cuban prisoner release a “positive sign,” but Obama said nothing.

In August 2010 Bill Richardson returned to Cuba on another trade mission and met with officials to try to obtain Gross’ release from prison. Richardson felt encouraged, but did not obtain the release.

Also in August 2010 the Department of State issued its Country Reports on Terrorism 2009, which again listed Cuba as a “state sponsor of terrorism.”

To try to rescue the stalled discussions, an Assistant Secretary of State met with Cuba’s Foreign Minister at the U.N. in October 2010. Rodriguez opened the meeting with a lengthy recitation of Cuba’s historical grievances against the U.S. and refused to engage in discussions about the future. “It was a terrible meeting,” said the U.S. official.

Soon after this terrible meeting, Rodriguez met again with Bill Richardson at the U.N. The Foreign Minister wanted the U.S. to know that Gross was merely a symptom of the troubled relationship, not its heart. Rodriguez also wanted the U.S. to know that Cuba had asked its supporters to tone down their criticism of Obama during the debate on the resolution to condemn the U.S. blockade (embargo) and that Castro had decided to improve ties with the U.S., but that the U.S. had not reciprocated. In addition, Rodriguez stressed the need for the U.S. to make progress on the case of the Cuban Five in U.S. prison.

Also in October 2010, John Kerry, then Senator and the Chair of the Senate Foreign Relations Committee, met Rodriguez, Cuba’s Foreign Minister, to discuss the U.S. democracy programs and Alan Gross, and an informal deal for his release seemed to be on track. However, the Administration abandoned the proposed changes in the Cuba democracy programs after objections from New Jersey Senator Robert Menendez. The Obama Administration was unwilling to wage a political fight with Menendez. This resulted in the Cuban government concluding that the Administration could not be trusted.

Earlier in 2010 advocates for lifting U.S. restrictions on travel to Cuba launched a major campaign over opposition from Senator Menendez and others. During his June trip to Washington Cuba’s Cardinal Ortega urged members of Congress to allow freer travel in light of Pope John Paul II’s injunction that Cuba “open itself to the world and . . . the world open itself to Cuba.” The resistance from Menendez and Miami Congresswoman Debbie Wasserman Schultz, however, prevented any congressional action to eliminate or reduce restrictions on U.S. citizens traveling to Cuba. Apparent indifference from President Obama also contributed to nothing happening in Congress on this issue.

Instead, at Obama’s direction, the Administration worked on a more limited expansion of travel through new regulations on “people-to-people” educational travel, but in August-September 2010 opposition by Menendez and Wasserman Schultz forced the Administration to shelf the new regulations.

Obama’s First Term, 2011

In mid-January 2011, on a late Friday before a holiday weekend, the Administration finally released the new regulations on expanded “people-to-people” educational travel. Cuba’s Foreign Minister said these regulations were “positive,” but they had “a very limited scope and do not change the policy against Cuba.”

In March 2011 Jimmy Carter, former U.S. President, went to Cuba at the invitation of Rául Castro. Before Carter left, Cuban officials made it clear that Gross would not be granted freedom. Carter met with Cardinal Ortega to discuss the Roman Catholic Church’s dialogue with the government, with blogger Yoanni Sánchez, dissidents, former prisoners, relatives of the Cuban Five in U.S. prison and with Alan Gross. Foreign Minister Rodriguez stressed the importance of the Cuban Five case for Cuba. Over dinner with Rául Castro, Carter emphasized that Gross’ imprisonment was a serious obstacle to improving relations and urged his release on humanitarian grounds. Castro said there was no consensus in the Cuban government on the Gross case, but reiterated Cuba’s willingness to engage in wide-ranging talks with the U.S., “without preconditions,” and “on equal terms with full respect for our independence and sovereignty.” Any topic could be discussed. “We are ready.”

Before his departure, Carter said the U.S. should fully normalize relations with Cuba immediately; Cuba should allow full freedom of speech, assembly, travel; the U.S. embargo should be ended; Cuba should be removed from the terrorism list; the Cuban Five should be released from U.S. prison; and Alan Gross should be released from Cuban jail. Rául Castro, standing nearby, quipped, “I agree with everything President Carter said.”

Upon Carter’s return to the U.S., he had a cool meeting with Secretary of State Clinton, and the next day the Administration advised Congress it was requesting $20 million of funding for the democracy promotion programs in Cuba.

On April 8, 2011, the Department of State released its 2010 Country Reports on Human Rights Practices; the chapter on Cuba described it as a “totalitarian state” that “denied citizens the right to change their government. In addition, the following human rights abuses were reported: harassment, beatings, and threats against political opponents by government-organized mobs and state security officials acting with impunity; harsh and life-threatening prison conditions, including selective denial of medical care; arbitrary detention of human rights advocates and members of independent organizations; and selective prosecution and denial of fair trial.”

In August 2011 the Department of State released its Country Reports on Terrorism 2010, which again listed Cuba as a “state sponsor of terrorism.”

Obama’s First Term, 2012

On May 24, 2012, the Department of State released its 2011 Country Reports on Human Rights Practices; the 27-page chapter on Cuba described it as a “totalitarian state” whose “principal human rights abuses were: abridgement of the right of citizens to change their government; government threats, intimidation, mobs, harassment, and detentions to prevent citizens from assembling peacefully; and a significant increase in the number of short-term detentions, which in December rose to the highest monthly number in 30 years.”

In July 2012 the Department of State released its Country Reports on Terrorism 2011, which again listed Cuba as a “state sponsor of terrorism.”

During the latter part of 2012 Obama and Biden were engaged in their campaign for re-election against Republican nominees Mitt Romney and Paul Ryan, which will be covered in a subsequent post.

In the meantime, in September 2012 Bill Richardson made another trip to Cuba after Cuba’s Supreme Court had affirmed Alan Gross’ conviction. The State Department gave him a list of things the U.S. was prepared to do if Gross were pardoned and released from prison. Most were possibilities, rather than commitments. The others were commitments, but already had been announced by the U.S.

The Richardson trip got off to a bad start when he leaked word of it to CNN’s Wolf Blitzer, who reported that the Governor had been invited by the Cuban government to negotiate the release of Gross. To the Cubans, this looked like an attempt to force their hand. Later the Cuban Foreign Minister told Richardson “One, you won’t get Gross; two, you won’t see Rául; and three, you won’t even see Gross.” An angry Richardson held a press conference to announce that he would not leave Cuba until he saw Gross, who was a “hostage” held by the Cubans. An angry Cuban government responded that Gross’ release was never on the table, that Richardson was aware of that position, that his request to see Gross was impossible after Richardson’s slanderous statements and that Cuba was a sovereign country that did no accept blackmail, pressure or posturing.

At the time nothing of consequence regarding Cuba is believed to have happened during the two months after the November 2012 election, in which Obama and Biden won re-election.

However, over the last seven months, we have learned that in December 2012 after his re-election President Obama held a long meeting with aides in the White House situation room to establish priorities for the second term. According to Ben Rhodes, the Deputy National Security Advisor who played a central role in shaping Cuba policy and who participated in that meeting, the aides all knew that Obama always had thought that the decades-long U.S. policy of trying to isolate Cuba through the embargo and other measures made no sense, and at the end of the discussion, Obama instructed aides to make Cuba a priority and “see how far we could push the envelope.”[4]

Moreover, at this December 2012 meeting the President also concluded that “it would be a good fit to have someone who was known to be very close to the President [involved in such an effort on Cuba] because the Cubans are very wary of engagement and they want to know that the engagement is reaching the top. They felt like there [had] been several other efforts of engagement where it turned out to be kind of “Lucy with the football,” where they had conversations with the Americans, [but after] they reached a certain point . . . there was never follow through [by the U.S.]. We can debate whether it was the Cubans’ fault or not, but that was their perception. So . . . [the Cubans] wanted someone . . . [involved for the U.S.] who were very close to the President and . . . they wanted it to be discreet.” Hence, the President designated Mr. Rhodes to be in charge of this new effort to engage Cuba.

Thereafter, Mr. Rhodes sent a secret message to the Cuban government that the U.S. wanted “to initiate a dialogue about prisoners and other issues.”

Obama’s First Term, January 2013

Nothing of consequence regarding Cuba was believed to have happened during the rest of President Obama’s first term, which ended on January 20, 2013, although the exact dates of the secret discussions with Cuba in 2013 are not yet known.

Conclusion

After fulfilling a campaign pledge In April 2009 to lift travel and remittance restrictions for Cuban-Americans while also authorizing U.S. telecommunications companies to contract with Cuba for improved television, radio and telephone service and Internet access, President Obama’s desire to seek normalization with Cuba was thwarted by Cuba’s December 2009 arrest and subsequent conviction and imprisonment of Alan Gross. The rest of Obama’s first term regarding Cuba seemed, at the time, concentrated on unsuccessful efforts to obtain Gross’ release. Now, however, we know that at the end of the first term a new and secret effort to engage with Cuba was launched.

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[1] This post and the subsequent posts about Obama’s prior statements about Cuba are not based upon comprehensive research. The primary research tool was online searching of the New York Times for articles mentioning “Obama and Cuba” for the relevant time period although the details have been lost in the process of editing this post. Therefore, this blogger especially welcomes comments with corrections and additions. Ultimately after public release of many Obama Administration documents after the completion of his presidency, scholars will undertake a detailed examination of those documents and provide their assessments of his record regarding Cuba.

[2] Transcript: Barack Obama’s Inaugural Address (Jan. 20, 2009).

[3] At about the same time (April 2009), the U.S. Interests Section in Havana turned off its external streaming electronic news billboard, and Cuba replaced the black flags on poles outside the Section with Cuban flags.

[4] Reuters, How Obama Outmaneuvered Hardliners and Cut a Cuba Deal, N.Y. Times (Mar. 23, 2015); Rhodes, The Obama Doctrine: America’s Role in a Complicated World, Aspen Ideas Festival (June 29, 2015).

Barack Obama’s Comments About Cuba During His Campaign for the Presidency, August 28 through November 4, 2008

In light of President Barack Obama’s historic December 17, 2014, announcement of rapprochement with Cuba, it is interesting to examine Obama’s earlier statements about Cuba. A prior post examined his campaign for the Democratic presidential nomination in 2007-2008. This post will discuss his campaign for the presidency as the Democratic Party’s nominee in 2008.[1] Future posts sill look at his first presidential term (including his 2012 presidential election campaign), 2009-2013; and his second presidential term (up to the December 17, 2014, announcement), 2013-2014.

Remember, as discussed in a prior post, that on August 28, 2008, Barack Obama accepted the Democratic Party’s presidential nomination. A week later (September 4^th) Senator John McCain accepted the Republican Party’s presidential nomination.

In the next two months leading to the presidential election on November 4th, the two candidates met in three debates on September 26 and October 7 and 15.

The New York Times thought the first debate on September 26 “was generally a relief from the campaign’s nastiness. Both John McCain and Barack Obama worked to strike a more civil and substantive tone. And Americans could see some differences between the candidates on correcting the regulatory disasters that led to the Wall Street crisis, on how to address the country’s grim fiscal problems and on national security. There were also differences in the candidates themselves. Mr. McCain fumbled his way through the economic portion of the debate, while Mr. Obama seemed clear and confident. Mr. McCain was more fluent on foreign affairs, and scored points by repeatedly calling Mr. Obama naïve and inexperienced.” However, there was no discussion about Cuba.

During the second debate on October 7 McCain criticized Obama for saying he would speak, without preconditions, to the leaders of countries like Pakistan (and presumably Cuba). McCain said he would deal with leaders of foes the way Theodore Roosevelt did: “talk softly, but carry a big stick. Senator Obama likes to talk loudly.” Again, no direct discussion about Cuba.

McCain, Bob Schieffer & Barack Obama Debate 2008

Throughout the last debate on October 15, reported the New York Times, “Mr. McCain offered voters what amounted to a reprise of all the attacks that have been lodged at Mr. Obama over the past year, by Mr. Obama’s Democratic and Republican opponents, Ms. Palin, Republican leaders and, at times, Mr. McCain.” But again no discussion about Cuba.

Moreover, said the Times, “the split-screen visual contrast [in the last debate] between the two men – Mr. McCain often appearing coiled and annoyed, Mr. Obama seeming at ease and smiling – was striking, and may not be what Mr. McCain was looking for a time when Mr. McCain’s favorable ratings have been falling, and when many voters say they think Mr. McCain is spending more time attacking than saying what he would do as president.”

On October 23, the New York Times endorsed Obama. It said, “After nearly two years of a grueling and ugly campaign, Senator Barack Obama of Illinois has proved that he is the right choice to be the 44th president of the United States.” The only mention of Cuba in that editorial was this: “Both candidates have renounced torture and are committed to closing the prison camp in Guantánamo Bay, Cuba.”

In the election on November 4, 2008, Barack Obama and Joe Biden obtained 69.5 million votes (52.9% of the total) while John McCain and Sarah Palin received 59.9 million votes (45.7%). In the key state of Florida, Obama-Biden had 51.0% of the popular vote against McCain-Palin’s 48.4%.The electoral votes were Obama and Biden, 365; McCain and Palin, 173.

Barack,Sasha, Malia & Michelle Obama, Nov. 4, 2008

In his victory speech to an open-air crowd of thousands at Chicago’s Grant Park,Obama siad, “If there is anyone out there who still doubts that America is a place where all things are possible, who still wonders if the dream of our founders is alive in our time, who still questions the power of our democracy, tonight is your answer.” He went on, “I will never forget who this victory truly belongs to. It belongs to you. It belongs to you.” His conclusion was the following: “This is our time, to put our people back to work and open doors of opportunity for our kids; to restore prosperity and promote the cause of peace; to reclaim the American dream and reaffirm that fundamental truth, that, out of many, we are one; that while we breathe, we hope. And where we are met with cynicism and doubts and those who tell us that we can’t, we will respond with that timeless creed that sums up the spirit of a people: Yes, we can.”

After Obama and Joe Biden won the November 2008 election, several head of states congratulated Obama while also calling for the U.S. to end its sanctions against Cuba.

Conclusion

In contrast with the campaigning for the Democratic presidential nomination, there was practically no mention of Cuba or of Obama’s proposed policies regarding that nation in the presidential race. Surprisingly the emphasis in the nomination campaign on Obama’s willingness to meet, without preconditions, leaders of states like Cuba almost disappeared in the campaign for the presidency.

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[1] This post and the other posts about Obama’s prior statements (and actions) about Cuba are not based upon comprehensive research. The primary research tool was online searching of the New York Times for articles mentioning “Obama and Cuba” for the relevant time period. Therefore, this blogger especially welcomes comments with corrections and additions. This post is based upon the following: Nagourney & Cooper, McCain vows to End ‘Partisan Rancor,’ N.Y. Times (Sept. 4, 2008); Editorial: The First Debate, N.Y. Times (Sept. 26, 2008); Nagourney, Economic Woes Set Tone for Rivals in 2^nd Debate, N.Y. Times (Oct. 7, 2008); First Impressions on the Last Debate, N.Y. Times (Oct. 15, 2008); Rutenberg, Candidates Clash Over Character and Policy, N.Y. Times (Oct. 15, 2008); Editorial: The Final Debate, N.Y. Times (Oct. 15, 2008); Healy, McCain Attacks, but Obama Stays Steady, N.Y. Times (Oct. 16, 2008); Editorial: Barack Obama for President, N.Y. Times (Oct. 23, 2015); Wikipedia, United States presidential election debates, 2008; Wikipedia, United States presidential election, 2008.

Barack Obama’s Comments About Cuba During His Campaign for the Democratic Party’s Presidential Nomination, 2007-2008

In light of President Barack Obama’s historic December 17, 2014, announcement of rapprochement with Cuba, it is interesting to examine Obama’s earlier statements about Cuba.[1] This post will examine his campaign for the Democratic presidential nomination in 2007-2008.[2] Future posts will look at his 2008 presidential campaign; his first presidential term (including his 2012 presidential election campaign), 2009-2013; and his second presidential term (up to the December 17, 2014, announcement), 2013-2014.

Barack Obama’s Announcement Speech February 2007

On February 10, 2007, at theI llinois State Capitol in Springfield Barack Obama announced his candidacy for the Democratic Party’s presidential nomination. Almost all of his speech was about domestic issues with the exception of his pledge to end the war in Iraq and “bring our combat troops home by March of 2008.” There was no mention of Cuba.

Later that month (February 2007) the New York Times’ Nicholas Kristof asked Obama, “Is the [Cuba] embargo a failure?” Obama responded, “I think we’ve got a potential opportunity with Castro’s health waning to reopen the debate. We probably shouldn’t be overly optimistic that it’s going to change overnight. And I think it’s important that the United States isn’t too heavy-handed post-Castro in swooping [in] and suggesting that somehow Cuba’s going to change immediately. I do think that it opens up the conversation among not just the United States but among Cubans both in the U.S. and in Cuba about breaking down some of the restrictions on travel and commerce….I don’t think we automatically ease those restrictions simply because Castro has died. What I think is that with Castro’s death there are going to be a new set of players, I think it’s going to be important for us to do an entire reevaluation of our strategy towards Cuba. And I think the aim should be to create a more open relationship….But that is still going to be contingent on having some desire on the part of the Cuban government to initiate that process as well.”

In the CNN/YouTube debate with Hillary Clinton in July 2007, Obama was asked, “’Would you be willing to meet, separately, without preconditions, during the first year of your administration, in Washington or anywhere else, with the leaders of Iran, Syria, Venezuela, Cuba and North Korea, in order to bridge the gap that divides our countries?” Obama replied, ‘I would,’ and added that it was a “disgrace that the Bush administration had refused on principle to do so.”

The Obama campaign team anticipated that the Clinton campaign would seize on Obama’s willingness to meet, without preconditions, with leaders of so-called rouge regimes. Obama, however, welcomed this attack and told his aides “we will not back down on this one bit.” This position was supported by polling in Iowa, the early caucus state, and showed that Obama represented change and Hillary did not.

Indeed, as anticipated, immediately after the debate, Hillary Clinton charged that Obama was too soft on talking with such countries. The Obama campaign responded that Mr. Obama would pursue “tough diplomacy,” but also use carrots like leader-to-leader talks.”

On August 21, 2007, Obama wrote an op-ed article in the Miami Herald “calling for ‘unrestricted rights’ for Cuban Americans to visit and send money to family in Cuba.” The following Saturday he campaigned in Miami’s Little Havana and told the crowd at a rally, “We’ve been engaged in a failed policy with Cuba for the last 50 years, and we need to change it.” He went on to promise to end restrictions on remittances and family travel for Cuban-Americans, to revive “people-to-people” educational and cultural exchanges and to engage Cuba on issues of mutual interest. Such engagement, he said, offered the best hope for promoting “a democratic opening in Cuba,” which is the “foremost objective of [U.S.] policy.”

At a December 1, 2007, televised Iowa debate among the Democratic candidates for their presidential nomination, Obama agreed with Mrs. Clinton, John Edwards and Joe Biden that the U.S. should not normalize relations with Cuba while Fidel Castro was still in power. Only Christopher Dodd and Dennis Kucinich were in favor of working for change with Fidel.

On February 19, 2008, the outside world provided a new circumstance for the candidates to react to. Fidel Castro resigned as President of Cuba due to poor health, and his brother, Raúl Castro, became Acting President and five days later (February 24, 2008) the President upon election by Cuba’s National Assembly.

In the meantime in a February 21, 2008 debate with Hillary Clinton in Austin, Texas, Obama made extensive comments about the U.S. and Cuba. He said, “The starting point for our policy in Cuba should be the liberty of the Cuban people. And I think we recognize that that liberty has not existed throughout the Castro regime. And we now have an opportunity to potentially change the relationship between the United States and Cuba, after over half a century. I would meet without preconditions, although Senator Clinton is right that there has to be preparation. It is very important for us to make sure that there was an agenda and . . . that [the] agenda [included] human rights, releasing of political prisoners, opening up the press. And that preparation might take some time.” His other points about Cuba were the following:

More generally “it is important for the United States not just to talk to its friends but also to talk to its enemies. In fact, that’s where diplomacy makes the biggest difference.”
“One other thing that I’ve said as a show of good faith, that we’re interested in pursuing potentially a new relationship, what I’ve called for is a loosening of the restrictions on remittances from family members to the people of Cuba as well as travel restrictions for family members who want to visit their family members in Cuba. And I think that initiating that change in policy as a start and then suggesting that an agenda get set up is something that could be useful, but I would not normalize relations until we started seeing some of the progress that Senator Clinton talked about.”
When challenged that he had had a different position on Cuba in 2003, Obama responded, “I support the eventual normalization [with Cuba], and it’s absolutely true that I think our [Cuba] policy has been a failure. . . . [D]uring my entire lifetime . . . you essentially have seen a Cuba that has been isolated but has not made progress when it comes to the issues of political rights and personal freedoms that are so important to the people of Cuba. So I think that we have to shift policy. I think our goal has to be ultimately normalization, but that’s going to happen in steps.”
“[T]he first step . . . is changing our rules with respect to remittances and with respect to travel. And then I think it is important for us to have the direct contact not just in Cuba, but I think this principle applies generally. [As] John F. Kennedy once said, . . . we should never negotiate out of fear, but we should never fear to negotiate. And this moment, this opportunity when Fidel Castro has finally stepped down, . . . is one that we should try to take advantage of.”

Immediately after this Democratic candidates debate, Senator John McCain, then a candidate for the Republican presidential nomination, jumped in with his criticism of Obama. McCain said, “Not so long go Senator Obama favored complete normalization of relations with Fidel Castro’s Cuba. Last night, he said that as president he’d meet with the imprisoned island’s new leader ‘without preconditions.’ So Raul Castro gets an audience with an American president, and all the prestige such a meeting confers, without having to release political prisoners, allow free media, political parties, and labor unions, or schedule internationally monitored free elections. Instead, Senator Obama says he would meet Cuba’s dictator without any such steps in the hope that talk will make things better for Cuba’s oppressed people. Meet, talk, and hope may be a sound approach in a state legislature, but it is dangerously naive in international diplomacy where the oppressed look to America for hope and adversaries wish us ill.”

Obama’s campaign promptly retorted, ““John McCain would give us four more years of the same Bush-McCain policies that have failed U.S. interests and the Cuban people for the last fifty years. My policy will be based on the principle of liberty for the Cuban people, and I will seek that goal through strong and direct presidential diplomacy, and an immediate change in policy to allow for unlimited family visitation and remittances to the island. In November, the American people will have a clear choice: a new direction versus more war in Iraq, more not talking to leaders we don’t like, and more of a Cuba policy that has failed to achieve freedom for the Cuban people. I am confident that the American people will choose the promise of the future over the failed policies and predictable political attacks of the past.”

President George W. Bush echoed some of McCain’s criticisms of Obama at a February 28, 2008 press conference. Bush called Cuba’s new President, Rául Castro, a “tyrant,” who was “nothing more than an extension of what his brother [Fidel] did, which was to ruin an island, and imprison people because of their beliefs.” Bush also rejected Obama’s willingness to meet with the new Cuban leader because it would “send the wrong message. It’ll send a discouraging message to those who wonder if America will continue to work for the freedom of prisoners, it’ll give great status to those who have suppressed human rights and human dignity.”

John McCain continued his criticism of Obama’s stance on Cuba on March 6, 2008. According to McCain, he would meet with Cuban leaders “as soon as the political prisoners are free … and free elections have been held. Then I would sit down with any freely elected president or leader of Cuba. But until that day came I would not in any way, as Senator Obama wants to do, legitimize an individual who has been responsible for education, repression, political prisons and a gulag. I don’t think that it would be appropriate to legitimize someone like Raul Castro by quote, sitting down with him. And under no circumstance would I do it.’’

On May 20, 2008, this line of criticism was reiterated by McCain. At a rally in Miami, he said, “Now Senator Obama has shifted positions and says he only favors easing the embargo, not lifting [it]. He also wants to sit down unconditionally for a presidential meeting with Raul Castro. These steps would send the worst possible signal to Cuba’s dictators — there is no need to undertake fundamental reforms, they can simply wait for a unilateral change in U.S. policy.”

Responding from a campaign stop in Oregon the next day (May 21, 2008), Obama said, “with Fidel Castro stepping down from the presidency” and his brother Raul now in that post, “I think it’s a good time for us to reassess our Cuba policy. Cuba is a dictatorship that does not respect human rights or the free exercise of religion.” On the other hand, Obama argued, “our Cuba policy was shaped when I was born and basically hasn’t changed for 46 years.” Since that policy of political and economic isolation “hasn’t worked,” he added, it is now time to “try different things.” Mr. Obama spoke of the possibility of normalizing relations with Cuba if diplomatic contacts prove fruitful. But he also argued that “it is important to send some signals right now,” recognizing that “our relationship may be at a moment of transition right now.” In particular, Mr. Obama indicated that he favors lifting restrictions both on visits by Cuban-Americans to their families on the island and on the money they send back to those relatives.

Two days later (May 23, 2008) Obama appeared in Miami before the Cuban American National Foundation, the most prominent of the anti-Castro Cuban exile groups. Obama said he would meet with the Cuban leader, Rául Castro, “at a time and place of my choosing.” After eight years of the disastrous policies of George Bush, “it is time to pursue direct diplomacy, with friend and foe alike, without preconditions.” Obama also said that if elected president he would immediately lift the bans on family travel to Cuba and the limits on how much money people can send to their relatives in the communist nation. But he “will maintain the embargo. It provides us with the leverage to present the regime with a clear choice: If you take significant steps toward democracy, beginning with the freeing of all political prisoners, we will take steps to begin normalizing relations.”

Three months later, August 25 to 28, the Democratic Party held its National Convention in Denver, Colorado, where it adopted its national platform and officially nominated its candidates for President and Vice President. Obama was nominated on August 27, when his former opponent, U.S. Senator Hillary Clinton, interrupted the official roll call to move that Obama be selected by acclamation. U.S. Senator Joe Biden also was nominated for Vice President that same night, following which he accepted the nomination.

Barack Obama @ Democratic Party’s National Convention 2008

On August 28 Obama accepted his nomination in a speech at INVESCO Field before a record-setting crowd of 84,000 people in attendance plus additional millions on national and international television. The speech concentrated on his visions for the future of the U.S. economy and better lives. He did not mention Cuba or any other foreign policy issue other than his promise to end the war in Iraq.

Conclusion

Obama in his campaign for the nomination consistently asserted that he favored discussions or negotiations with Cuba and other rogue states “without preconditions.” That, in fact, is what he did in the 2013-2014 secret negotiations with Cuba that led to the December 17, 2014, announcement of rapprochement with Cuba.

This campaign position was based upon the assumption that the nearly 50-years of U.S. policy regarding Cuba was a failure and needed to be changed. This, in fact, is what he said in the December 17^th announcement and the July 1^st announcement of re-establishment of diplomatic relations with Cuba.

In this campaign Obama advocated liberalizing U.S. restrictions on travel to Cuba and U.S. citizens’ remittances to Cubans. This, in fact, is what he did in early 2009 and in 2014.

Obama in this campaign also talked about the importance of the U.S. pressing Cuba on human rights, releasing of political prisoners and opening up the Cuban press. This, in fact, since December 17 these subjects are being discussed with Cuba.

There, however, was one discordant note in this campaign. On May 23, 2008, Obama said he would maintain the embargo whereas in the December 17, 2014, announcement he called for Congress to end the embargo.

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

[2] This post is based on the following: David Plouffe, The Audacity to Win (Viking; New York; 2009); Assoc. Press, Ill. Sen. Barack Obama’s Announcement Speech, Wash. Post (Feb, 10, 2007); Kristof, Obama on the Issues (and his Grandfather’s Wives), N.Y. Times (Mar. 5, 2007); Seelye, Clinton-Obama Commander Duel, N.Y. Times (July 24, 2007); Falcone, 2008: Obama Speaks, N.Y. Times (Aug. 21, 2007); Traub, Is (His) Biography (Our) Destiny?, N.Y. Times (Nov. 4, 2007); Healy, Though Caucuses Loom, Democrats Tone It Down, N.Y. Times (Dec. 1, 2007); McKinley, Fidel Castro Resigns as Cuba’s President, N.Y. Times (Feb. 19, 2008); Transcript: Democratic Debate in Austin, Texas, N.Y. Times (Feb. 21, 2008); Phillips, McCain Hits Obama on Cuba, N.Y. Times (Feb. 22, 2008); McKinley, Raúl Castro Named Cuba’s New President, N.Y. Times (Feb. 24, 2008); Stout & Knowlton, Bush Calls Surveillance Bill an ‘Urgent Priority,’ N.Y. Times (Feb. 28, 2008); Stolberg, Bush Criticizes Democrats Running for President on Trade, Iraq and Cuba, but Not by Name, N.Y. Times (Feb. 29, 2008); Cooper, Vice Presidential Tea Leaves and a Dig at Obama, N.Y. Times (Mar. 6, 2008); Luo, McCain Now Hammers Obama on Cuba, N. Y. Times (May 20, 2008); Rohter, Obama to Address Cuban Group, Marking Shift from GOP Alliances, N.Y. Times (May 22, 2008); Zeleny, Obama Discusses Cuba Policy, N.Y. Times (May 23, 2008); Zeleny, Obama, in Miami, Calls for Engaging with Cuba, N.Y. Times (May 24, 2008); Wikipedia, 2008 Democratic National Convention; Transcript: Barack Obama’s Acceptance Speech, N.Y. Times (Aug. 28, 2008).

Ted Cruz Torpedoed U.S. Ratification of Treaty on Rights of Persons with Disabilities

As reported in a prior post, on December 4, 2012, the U.S. Senate voted 61 to 38 to give its Advice and Consent to U.S. ratification of the United Nations Convention on the Rights of Persons with Disabilities. This, however, fell six votes short of the two-thirds vote required by Article II, § 2(2) of the U.S. Constitution. This failure happened even though the treaty essentially adopted the terms of the Americans with Disabilities Act and was supported by all 51 Democratic, 2 Independent and 8 Republican Senators.

The 38 “No” votes were all cast by Republican Senators despite the support of the treaty by Robert Dole, the former Republican Majority and Minority Leader of the Senate and the Party’s presidential candidate in 1996, who was on the Senate floor in his wheelchair to garner support for the treaty.

We now learn that on that day (December 4, 2012), Ted Cruz, in the month before he became the new U.S. Senator from Texas, attended a Senate Republican caucus meeting and spoke against the treaty as an infringement of U.S. sovereignty and urged the Republican Senators to vote against the treaty. After the lunch, according to Democratic Senator Dick Durbin, the Republican Senators emerged “scared as hell.” For Republican Senator John McCain, “It was the most embarrassing day in my time in the Senate, to force Bob Dole to watch that.” All of this is in an article (The Absolutist) by Jeffrey Toobin in the June 30, 2014, issue of the New Yorker.

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.

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.

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.

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.

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.

[1] Raju, Reid: Will shift filibuster rules, if no deal set, Politco (Jan. 22, 2013). See also Peters & Parker, Reid Optimistic for Filibuster Deal in Senate, N.Y. Times ( Jan. 22, 2013); Halderman, Reid says filibuster reform deal is close, Wash. Post (Jan. 22, 2013).

Only Three Days Until U.S. Senate Decides on Filibuster Reform

On January 3, 2013, the U.S. Senate of the 113th Congress convenes for the first time. One of the first items of business will be adoption or amendment of its rules.

Prior posts have examined the so-called “speaking filibuster” reform proposal led by Senator Jeff Merkley of Washington State. Although I think it does not go far enough to prevent the minority Republican Senators from stopping action on the nation’s urgent business, the only way it can be adopted on January 3rd is by a simple majority vote of at least 51 Senators under the so-called “constitutional option” or “nuclear option.”[1]

This prospect last Friday prompted an even weaker reform measure from four Republican Senators (John McCain, Lamar Alexander, Jon Kyl and John Barrasso) and four Democratic Senators (Carl Levin, Chuck Schumer, Mark Pryor and Ben Cardin).

This so-called bipartisan plan’s main changes would allow the majority leader to prevent filibusters when the Senate starts debating legislation; reduce the number of filibusters when the Senate is ready to start trying to write compromise legislation with the House; ensure that each party would be allowed two amendments to each bill; and reduce the number of federal judgeships subject to filibusters, although not for top judges. This group’s proposal is not a rules change, but rather a “standing order” that would expire next term. In addition, although the proposal does not require a speaking filibuster, a document explaining the proposal said the leaders of the two parties would require it.

In order for this weaker “bipartisan” proposal to block the one from Senator Merkley, the former’s supporters have to obtain the backing of only one more Democratic Senator (in addition to the four that are its original sponsors) that would deprive Senator Merkley’s proposal of the 51 votes its needs to pass under the “constitutional option.”

One of their most promising targets for this additional vote for the weaker proposal has been Senator Dianne Feinstein, who has been reluctant to change the rules on a party-line vote because of concerns about what will happen if and when Democrats are once again in the minority. On yesterday’s “Fox News Sunday,” however, Feinstein said she is hopeful the bipartisan plan will work out, but she would not rule out the Democrats’ going it alone.

According to the Huffington Post, there are two other Democratic Senators that are possible endorsers of the more limited reform. They are Senators Baucus of Montana and Donnelly of Indiana.

Even if the “bipartisan” proposal could deprive a simple majority for the Merkley proposal, it appears doubtful that the “bipartisan” version could obtain the 67 votes it would need for adoption under the current rules requiring a two-thirds (or 67) votes to amend the rules. However, if the Merkley proposal is defeated, its backers could reluctantly support the “bipartisan” version as “something is better than nothing.”

Keep in mind that a broad coalition of nearly 50 progressive and labor organizations that have been actively lobbying for filibuster reform have rejected the bipartisan proposal, calling it a “recipe for continued Senate gridlock.”

Watch carefully the news from the Senate on January 3rd to learn what happens.

[1] This account is based upon the following: Assoc. Press, Bipartisan Senators Propose Curbing Filibusters, N.Y. Times (Dec. 28, 2012); Weissman, Lawmakers Suggest New Rules To Speed Up Senate Business, N.Y. Times (Dec. 28, 2012); Breaking the Filibuster, Huffington Post (Dec. 28, 2012); Johnson & Grim, John McCain, Filibuster Reform Opponents Offering Counterproposal, Huffington Post (Dec. 28, 2012); Kim & Everett, Bipartisan compromise pitched on filibuster, Politico (Dec. 28, 2012); McAuliff & Grim, Weakened Filibuster Reform Plan Revealed in Congress By John McCain, Carl Levin, Huffington Post (Dec. 28, 2012); Grim, Weak Filibuster Reform Offer Rejected By Progressive, Labor Coalition, Huffington Post (Dec. 29, 2012); Grim, Dianne Feinstein: Filibuster Reform Headed In Bipartisan Direction, But Nuclear Option Still On Table, Huffington Post (Dec. 30, 2012).

Update on Changing the U.S. Senate Filibuster Rule

Prior posts have discussed the internal Senate movement for reforming its filibuster rule that now requires 60 of the 100 Senators to agree to vote on the merits of most proposed legislation and confirmation of presidential appointments. Other posts have covered the pending federal lawsuit challenging the constitutionality of that rule.

There have been further developments on both fronts.

Internal Senate Efforts

Jeff Merkley, Democratic Senator from the State of Washington and the leader of the filibuster reform effort, is building a simple majority (at least 51 votes) for reforming the filibuster rule on January 3, 2013, when the new session of Congress opens. His basic proposal is the so-called “talking filibuster” with these major points according to his December 12, 2012 memo to fellow Senators:

If at least 41 Senators voted for additional debate on a legislative proposal, there would be additional debate.
Such additional debate would require at least one Senator to be on the floor presenting arguments on the proposal.
If there were no Senator present to speak to the proposal, the presiding officer would rule that extended debate was over, and the Majority Leader would schedule a simple-majority cloture vote to end all debate after an additional 30 hours of debate,

Approving such a change by a simple majority vote has been called “the nuclear option” or “the constitutional option.”

In response to a simple majority coalescing to support such a reform, some of the leading Senate Republicans (John McCain, Lamar Alexander, Jon Kyle and Lindsay Graham) are trying to convince Democratic Senators (Mark Pryor, Carl Levin and Chuck Schumer) who are reluctant to use the “nuclear” or “constitutional” option to embrace a more limited reform that could be supported by 67 Senators (the number required by the existing Senate rules). The exact nature of such a more limited reform has not been disclosed. Nor has the likelihood of enlisting 67 Senators to support such a more limited reform been assessed.

Moreover, many observers are skeptical about the ability of the “talking filibuster” proposal put forward on December 12th by Senator Markley to stop the dysfunctionality of the Senate. They point out that the proposal does nothing to prevent “holds” by individual Senators that prevent Senate action or to prevent the offering of amendments during a debate. Nor does this proposal ban filibusters on motions to proceed with consideration of a bill or nomination or require any Senator’s remarks to be germane to the matter at hand. Moreover, who doubts the willingness of the Republican Senators to talk and talk?

As we come closer to January 3rd, a failure to resolve the “fiscal cliff” stalemate may preempt attention to filibuster reform that day and politically eliminate the possibility of changing the filibuster rule by a simple majority.

Litigation over the Filibuster Rule

In May 2012 Common Cause, four members of the U.S. House of Representatives and three private citizens sued certain Senate officers. The complaint alleged that the filibuster rule was unconstitutional, and the defendants moved to dismiss the complaint on various grounds.

On December 5th the U.S. District Court for the District of Columbia issued an order asking that at the upcoming hearing on the dismissal motion the parties should be prepared to discuss all arguments set forth in the briefs and in particular to address Plaintiffs’ vote nullification theory of standing for the plaintiffs who are members of the House of Representatives.[1] The following are the parties’ arguments on that theory from their previously filed briefs:

According to the plaintiffs, the House member plaintiffs were in the majority when the House passed the Development, Relief and Education for Alien Minors Act (the DREAM Act) on December 8, 2010, only to have it die in the Senate when it subsequently failed to invoke cloture of the debate 55-41. So too the House member plaintiffs were in the majority when the House passed The Democracy Is Strengthened by Casting Light On Spending in Elections Act (the DISCLOSE Act), 219 to 206, on June 24, 2010 only to have it die in the Senate when a vote for cloture of the debate failed, 59-39 on September 23, 2010. As a result, it is contended, these plaintiffs’ legislative votes were nullified by the Senate’s filibuster rule, and they have standing to sue under Raines v. Byrd, 521 U.S. 811 (1997); Coleman v. Miller, 307 U.S. 433, 438 (1939); and D.C. Circuit cases.
The defendants, on the other hand, assert that the House members lack standing under Raines because they have not been individually deprived of something they are personally entitled to and because their votes would not have been sufficient by themselves to defeat or enact a bill if they had not been nullified.

The December 10th two-hour hearing itself apparently focused on the issue of whether the plaintiffs had standing to bring the lawsuit. Judge Emmit G. Sullivan said the case raised difficult issues and at the end of the hearing asked defense counsel to submit a short brief on certain questions. Later that same day, however, the court limited the request for an additional brief to whether the court could address the political question doctrine without reaching the issue of standing.

The defendants’ supplemental brief of December 11th cited precedents from the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit holding that a federal court may address the issue of lack of justiciability under the political question doctrine without first addressing the issue of the plaintiffs’ standing to bring the lawsuit.

The next day the plaintiffs filed their supplemental brief agreeing with that legal proposition. However, they argued, the case was justiciable on the grounds of U.S. Supreme Court cases holding that rules of the Senate or the House are subject to judicial review. In short, said the plaintiffs, there was no “political question” foreclosing the courts from considering this case.

We now await the court’s ruling on the dismissal motion.

[1] Perhaps related to the standing of the Congressmen in the filibuster case is the U.S. Supreme Court’s recent decision to review a case challenging the constitutionality of the Defense of Marriage Act in which a so-called “Bipartisan Legal Advisory Group” of Congressmen intervened to defend that statute, and the Supreme Court’s order for the parties in that case to address whether or not this Group has Article III [constitutional] standing in this case.”