Majority Rule Redux

An extension of unemployment benefits failed yesterday, because it is supported by a mere 57% of Senators.

I don't pretend to know whether extending unemployment benefits is really a good idea or not. Paul Krugman keeps saying that we need more of just this kind of government spending now, and he's got a Nobel prize in economics, so I'm inclined to agree with him. But it is at least a priori possible that we have reached the point where it's time to worry more about the deficit than about the recovery, and deciding which side is right is not my area of expertise.

But what I do know is this: our political system is broken, and the filibuster rule in the Senate is the chief culprit.

It's absurd that something supported by 57% of our elected representatives can't get legislatively passed. These days, if an individual candidate gets 57% of the vote in an election, that's a big, solid win. So why can't policies supported by 57% of our elected representatives get enacted?

Health care reform, ultimately enacted with the aid of the Senate's "reconciliation" rule (which doesn't permit filibusters), showed how efficient Congress can be when it isn't bound by an absurd supermajority requirement. The House of Representatives passed a series of fixes to the health care reform bill, the Senate (by a healthy 56-43 majority) adopted them with just a couple of tiny changes, and the House agreed to the changes -- all within a week!

Imagine where we could be if the Senate needed only a majority to pass any legislation. Not just these unemployment benefits, but financial reform, climate change legislation, energy policy reform, and probably even immigration reform could all be accomplished already.

Maybe Congress would enact good legislation, maybe not. Things could be a lot better because Harry Reid wouldn't have to agree to outrageous special deals to buy those last few votes. Things could be worse because the majority would go out of control. But things would get done. And if the people didn't like what got done, they could vote for someone else. That's got to be better than what we have now.

Maybe filibusters made sense at some earlier stage in our nation's history. They might have been OK in past days when there was a gentlemen's agreement to use filibusters only on occasions of great moment. But now that they are used every day, on every kind of legislation or nomination, they are a fatal impediment to basic governance. The filibuster rule must go.

Sorry About That

Republican Representative Joe Barton apologized to BP for the "shakedown" the company has received from the White House. Then he apologized for apologizing and took back the word "shakedown."

What was he thinking? Look, the minimum penalty for causing an environmental catastrophe has to be forcing the company to internalize the cost that it has imposed on the rest of us. We don't know exactly how much it's going to cost to clean everything up and compensate those who have lost income, but something in the billions seems highly likely. I don't know if it'll be more or less than $20 billion, which is the amount of the compensation fund BP has set up, but that seems like it's in the ballpark.

The compensation fund seems right on target. People are calling for criminal penalties, but there's nothing like good old money to motivate profit-seeking corporations. Let's say BP saved a couple of million dollars by taking safety shortcuts when building the well. Socking them up for $20 billion, which is 10,000 times that amount, is a powerful incentive. It would cause a rational company to tell its employess, "don't try to save a couple of million by taking safety shortcuts if there's even a 1 in 10,000 chance that it might go wrong and cost us $20 billion."

If we could force profit-seeking companies to perfectly internalize all the external costs that their operations impose, they'd have exactly the right incentives. Of course, the external costs can never be perfectly measured and in most cases there's a lot of litigation costs and uncertainty. But a $20 billion compensation fund seems like a good start.

Everyone's Got a Theory

Everyone's got a theory as to why mystery man Alvin Greene won the Democratic primary for U.S. Senate in South Carolina. It is quite mysterious how a man who never gave a speech, had no campaign web site, and has $114 in his campaign account could have won the primary -- and pretty handily, too, by 100,000 votes to 70,000 (see page 9 of the results).

But of all the theories, the one that I find most implausible is that somehow the Republicans engineered the result by planting him in the Democratic primary and having large numbers of Republicans cross over and vote for him to sabotage the Democrats' chances in the general election. I suppose it's theoretically possible, because South Carolina's primaries are "open" -- voters can choose which party's primary to vote in -- but it's not the kind of thing you can engineer secretly. To get 100,000 voters to vote for someone nobody's ever heard of requires some notice and planning. You can't just send a secret e-mail to all of the state's Republicans. Someone would spill it. Back in the 2008 presidential primaries, Rush Limbaugh advised Republicans to cross over and vote for Hilary Clinton to make life more difficult for the Democrats (which turned out to be bad advice -- it ended up helping Obama), but he didn't even try to keep it secret.

It's possible that Greene is somebody's plant -- it is a little hard to understand how a man who's being represented by a public defender in a criminal case came up with over $10,000 for the filing fee -- but that still doesn't explain what moved over 100,000 South Carolinians to vote for him.

So I would check into the voting machines (that's another theory), but I wouldn't blame cross-over Republicans.

Oh, and did anyone check whether Vic Rawl, the apparently more serious Democratic candidate, ran a lame campaign?

Protests Too Much

This is rich -- John Yoo thinks we should be concerned that Supreme Court nominee Elena Kagan might not take a sufficiently broad view of executive power. That's kind of like saying that Tiger Woods is concerned that she's single.

John Yoo was Deputy Assistant Attorney General in the Bush Administration and wrote the infamous "torture memo." He takes the broadest view of executive power around, and his reasoning isn't even remotely responsible. In the torture memo, for example, he said that, in light of the President's power as Commander in Chief, a statutory prohibition against torture had to be construed so as not to apply to interrogations undertaken pursuant to the Commander in Chief authority, and he didn't even mention Congress's war powers. It's one thing to reach a conclusion after considering both sides, but he just ignores the other side.

And he's still doing it. Even in his Times piece, he describes the view that Congress can insulate agency officials from the President's removal power as "simply wrong." Simply wrong! His evidence -- Justice Scalia's dissenting opinion in Morrison v. Olson. He doesn't mention that the vote in that case was 7-1 -- Justice Scalia was alone in dissent. He goes on to say that "From the time of George Washington, presidents have understood Article II to grant them the authority to hire and fire all subordinate officers of the United States, and hence command their activities." He doesn't even mention that this hasn't been the law at least since the Supreme Court's decision in Humphrey's Executor in 1935, more than 70 years ago.

So boy, I'm really concerned that John Yoo might not approve of Elena Kagan. Actually, I'm not. His disapproval is more like a recommendation.

Swear or Affirm

Members of the House of Commons were sworn in this week as the new Parliament started. As is true in the U.S., members can choose to swear by God that they will bear true allegiance (to Her Majesty there, to the Constitution here), or they can solemnly affirm that they will do the same. But what's interesting is that, as can be seen in the video, in Britain many members actually choose the "affirm" option. The new Conservative Prime Minister, David Cameron, swore, but his Deputy Prime Minister, Liberal Democrat Nick Clegg, affirmed, as did the Speaker and the Leader of the Labour party. Most of the Labour party affirmed; most of the Conservatives swore.

What would happen to a politician in the U.S. today who declined to take an oath and swear by God to support the Constitution? Our Constitution gives the affirm option and provides that "no religious test" shall ever be required for public office, but I think the voters might visit their displeasure on a politician who didn't swear. Apparently Franklin Pierce chose to affirm back in 1853, and Quakers often affirm because their religion takes literally the biblical prohibition on swearing by God. But a politician today who affirmed and explained doing so on the ground that he didn't believe in God would be in some trouble here, I think.

Should Kagan Talk?

Lots of buzz lately about whether Elena Kagan, President Obama's choice to fill Justice Stevens's Supreme Court seat, should or will actually answer questions during her Senate hearings, or whether she will follow the example of recent nominees and pretty much stonewall everything. Some commentators have enjoyed pointing out that Kagan herself has stated that "the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct." So it might seem that she should be particularly subject to substantive questioning.

Supreme Court confirmation hearings have become a game in which nominees display their skill at avoiding substantive questions. It's a little peculiar. The expressed reason is usually that the nominee doesn't want to "prejudge the issue." It is thought unseemly that the nominee should commit herself to voting a particular way on an issue that is likely to come before her as a judge. But if that is the case, what do we do with actual judges and Justices who have, many times over, committed themselves to voting particular ways on particular issues that come before them? Every Justice who votes on a case is committing himself to voting that way on the same issue the next time around. There's no need to wonder how Justice Scalia or Justice Breyer will vote on the question of whether Congress can abrogate state sovereign immunity; they've both expressed their views on this issue very clearly. Should they be kicked off the Supreme Court? Obviously that's not how it works.

A better reason for a nominee's reluctance to answer questions, I think, should be that they don't know the answer. I remember during Justice Souter's confirmation hearings that a Senator, trying to find some acceptable way to get at the nominee's views on big issues, asked whether the Korean war was constitutional (or perhaps he asked whether it was a "war" in the constitutional sense, I don't remember exactly). Souter declined to answer, citing the usual reasons. But I think a better reason would have been this: look, we don't hire people for the job of Supreme Court Justice because they have the answer to every difficult question written on their shirt cuffs. If that question really arose in real litigation, it would get bandied about in the lower courts for months or even years, parties would make every conceiveable argument on both sides, it would come up to the Supreme Court in a particular context, it would be extensively briefed and argued there, and only then would a Justice be called upon to opine on it.

Justices aren't and shouldn't be expected to know everything instantly. They get to look smart because they make decisions by choosing between outstanding arguments made by smart counsel. I suppose it wouldn't play well on TV if Souter, asked whether the Korean war was constitutional, had said, "oh, I have no idea," but that would probably be a more honest reason for declining to answer. There's a reason why we have an elaborate process for getting answers from the Supreme Court. The questions are hard and the answers should be produced with deliberation.

PR Again

The other day I pointed to a couple of disadvantages of proportional representation, so it's only fair to give the other side a hearing, and who better to explain the advantages of proportional representation than funnyman John Cleese? Just click here for a ten-minute video explanation that points out that (1) pretty much every other country in Europe uses PR, (2) PR tends to prevent sharp policy swings from liberal to conservative and back again, (3) PR promotes compromise instead of divisiveness, (4) PR produces a Parliament that better reflects the overall voting distribution in the country, and (5) PR tends to elect more women and minority MPs than first-past-the-post.

A well-done video that makes you think. And it was produced back in 1987! So this issue has been around for a long time.

Fixed-Term Parliaments?

Now that David Cameron is Prime Minister, with Nick Clegg as Deputy Prime Minister, the pair can get to work on their agenda (and I promise we'll stop with this British politics stuff soon). Apparently one item on the program is a change to fixed-term Parliaments, so that the next election date is already planned for May, 2015.

Have the Brits thought about what this will mean? Britain is currently blessed with short election campaigns -- they last about six weeks. But, it seems to me, that's all based on not really knowing when the election is going to be. Current British law permits the governing party to call a general election anytime it wants, with a maximum interval of five years between elections. Of course that is rather unfair -- it gives the party in power an important edge, by allowing it to call an election when it thinks things are going well. But it does have at least one important advantage -- the campaign is short.

Because there's no fixed date for the election, no one knows when to start campaigning. Of course, you could start promoting yourself early, I suppose, but campaigning costs money, and you don't want to start blowing your campaign funds when you don't know the election date.

Once there's a fixed election date, it seems to me, everyone can start campaigning at whatever time they think strategically best, and the American experience suggests that that time gets earlier every election cycle. If Britain firmly establishes now that its next general election is going to be in May, 2015, I would expect campaiging to start a whole lot earlier than the traditional six weeks or so before the election -- they might have to endure six months or a year, and that's just for this go-around.

Well, perhaps they'll deal with it by limiting campaigning legally. Britain has no First Amendment to get in the way of campaign restrictions, so political television advertising is already mostly banned in Britain, and perhaps they'll figure out a way to stop campaigns from getting too long. But it'll be hard to ban all political promotion and I think fixed-term Parliaments are likely to lead to much longer campaigns.

Poignant Letter

And speaking of British politics, I enjoyed this short but poignant letter that appeared in the Guardian newspaper:

"I should like to check a couple of things in the British Constitution. Where can I buy a copy?"

American constitutional law is hard enough, but at least the Constitution consists of a text that anyone can read. Britain's "constitution" consists of an ill-defined set of important statutes plus an even less well defined set of traditions.

Some work is in progress to provide Britain with a written Constitution -- and I am proud to tell you that this project was announced in a speech at George Washington University by Jack Straw, Britain's Justice Secretary, when he was here a couple of years ago -- but at the moment there is of course nowhere to "buy a copy" of the British Constitution.

It must make things tough when things like a hung Parliament arise. The previous Prime Minister, Gordon Brown (who apparently is still Prime Minster, at least for now), initially insisted that the rule for that situation was that he had the first opportunity to form a new government, but David Cameron (leader of the Conservatives, who got the most seats) thought that it was his prerogative. The matter was effectively decided by Nick Clegg, leader of the third-party Liberal Democrats, who agreed with Cameron.

Of course, we have plenty of doubtful points arising under our written Constitution too. But at least we know what the Constitution is, even if we don't always know what it means.

Proportional Stalemate

I doubt that I have many British readers, but the Internet goes everywhere, so here's a thought for Britons contemplating switching to a system of proportional representation.

First, background for American readers: Britain's general election on Thursday produced a "hung Parliament" -- no single party controls a majority of the seats in the House of Commons. The Conservatives have the biggest share of seats at 306, Labour is second at 258, and the third party Liberal Democrats have 57. Minor parties control 28. That means that no party can form a government by itself, and coalition talks are proceeding. 326 seats are needed for a majority, so the Conservatives could form one by allying with the Liberal Democrats, but Labour and the Liberal Democrats together wouldn't have enough -- they'd have to rope in some small-party seats.

The biggest demand of the Liberal Democrats is a change in the system of elections. Britain, like the U.S., uses a "first past the post" system, in which any given seat goes to the candidate with the most votes for that seat, even if that number is not a majority. Such a system is hard on third parties. A party like the Lib Dems, which has a fair amount of support throughout the country but not much concentrated support anywhere, doesn't get nearly its "fair" share of seats, if "fair" is defined as proportional to the overall vote. Last Thursday the Lib Dems got 23% of the nationwide vote but only 9% of the seats in Parliament.

A proportional representation system is fairer in the sense that seats in the legislature are distributed in proportion to the overall national vote, but it has the disadvantage that voters don't really get to vote for candidates -- the vote is more a vote for a party than for a candidate. Your local representative is determined in part by the overall national vote, so the sense of voting for a particular candidate because he or she is good is diminished.

Anyway, all of that is the background to what I'm sure is a very obvious point, but here goes: if Britain is upset that is has a hung Parliament, in which the parties have to go wooing each other to form a majority, don't they realize that a system of proportional representation would produce a hung Parliament forever? This year the Conservatives got 36% of the vote, Labour 29%, and the Liberal Democrats 23%. With percentages like that, with no party even close to 50%, a proportional representation system is guaranteed to produce a hung Parliament. First past the post produces more concentrated results.

That's not to say that first past the post is good and proportional representation is bad. Each system has its virtues and its vices. But it seems clear that if Britain switches to proportional representation, it had better be ready to live with coalition government indefinitely.

Better Politics

When health care reform was teetering on the brink of extinction (following Senator Scott Brown's victory in Massachusetts), I noted that President George W. Bush managed to get pretty much everything he wanted even though Republicans never had more than 55 Senate seats during his Presidency. Heck, he got us to go to war against Iraq, on the ground that terrorists from other countries had attacked us, when the Republicans were a minority in the Senate.

How did he do it? Well, for one thing, when Bush wanted something, you sure knew what it was, and he mentioned it every day. He talked things up until there was so much political pressure on Democrats that they had to vote for it.

President Obama is now making better use of political pressure on Republicans. Just ten days ago, all 41 Senate Republicans signed a letter opposing financial reform. Then President Obama went on the attack, pointing out that Wall Street's failure of responsbility led to the financial crisis. Democrats started painting Republicans as being on the side of big bankers and against ordinary Americans.

What do you know, suddenly the reports were that a deal was close on financial reform. There is still some doubt as to whether there are enough votes to start debate today, but even Republicans are "hopeful" that a deal can be reached.

That's the way to get stuff done. Neither party can get its entire membership to stand in the way of something really popular. The Democrats just need to create enough popular pressure to break off one Republican vote, and they can defeat a filibuster.

Birther Bill Back

The Birther Bill is back. After making no progress at the federal level (H.R. 1503 was referred to a committee more than a year ago and hasn't been heard from since), the Birther Bill concept has devolved to the states. Arizona's House of Representatives just passed a version that would require presidential candidates to file proof of eligibility -- i.e., age, residency, and natural born citizenship -- to get on the ballot in that state.

Some editorialists are quick to dismiss Birther Bills as "fringe lunacy." And yes, in some sense, they are. It is pretty crazy, in the face of all the evidence, to continue to believe that President Obama is ineligible to serve because he is not a natural born citizen. And there is little doubt that the motivation behind the Birther Bills is to embarrass the President and to suggest that he is ineligible (or at least to appease those who adhere to this kooky belief).

But on the other hand, as I've observed before, if we could somehow detach the Birther Bills from the absurd controversy about President Obama particularly, and think of them in the abstract -- imagine, say, that they came up 50 years ago, or 50 years from now -- we would see that they are actually good public policy. The Constitution does require that the President be a natural born citizen at least 35 years of age. The Constitution should be enforced. There is a strong argument that the courts could not enforce the presidential eligibility requirements. Therefore, some other enforcement mechanism is necessary.

The mechanism we have now -- do nothing, and just hope that the requirements are complied with -- actually works pretty well. The tremendous publicity associated with any preisdential campaign tends to ensure that no one would even try to get around these requirements, because they would almost certainly be caught. But while it's not likely that a problem would arise that couldn't be ferreted out by the current system, the problem, if it did arise, would be very significant. So why not take some extra steps to prevent it? Especially when the necessary steps would not be particularly burdensome -- candidates would just have to file proof of eligibility with appropriate state or federal authorities.

So while the current situation is not exactly a crisis calling out for a remedy, it does pose a small risk of a big problem, and requiring presidential candidates to file proof of their eligibility seems like a good way of avoiding problems. (Actually, repealing the eligibility requirements would be even better, but so long as they are in the Constitution they should be enforced.)

Could this be done at the state level? Some people have suggested that states the lack constitutional authority to enforce the presidential eligibility requirements. But the Constitution gives the states great control over selecting their presidential electors -- it just says that each state shall appoint its electors " in such Manner as the Legislature thereof may direct." States don't even have to hold presidential elections if they don't want to. So I would think they would have great control over the manner of holding the election, if they choose to have one, and it's hard for me to see how a state could be faulted for refusing to put on their election ballots someone who isn't eligible for the office sought.

The Real Government Takeover

Less noticed amidst the health care hubbub, and the imaginary "government takeover" of health care, is the real government takeover of the student loan industry. President Obama has signed legislation providing that, instead of guaranteeing repayment of student loans from private banks, the government will lend money to students directly.

It's about time. The prior system was a miniature version of last year's bank bailout -- it had the same feature of privatizing profit while socializing losses. Why should banks get the profits from student loans while the government bears all the risk of nonpayment? It was high time to cut out the middleman.

Predictably, Republicans are speaking against the new system as a government takeover of business that ought to be private. But really, if businesses want private profits, they should have to bear the business risks too. Government-guaranteed student loans were pretty close to pure corporate welfare.

Socialist Baby-Killers

I was playing in a local bridge tournament this weekend, and before the first round I was chatting with one of our opponents. The talk turned to health care reform, and we both remarked that we didn't understand all the details yet, but it was pleasant to see that the Democrats had shown some spine and gotten reform passed.

About this time our other opponent arrived at the table. "Oh, I see you guys are a bunch of socialists," he said. "You like all this socialism and this socialist take-over of health care. You're probably baby-killers too, aren't you? Are you guys baby-killers?"

This remark encapsulated what's gone wrong with American politics. Look, there are reasons to like health care reform and there are reasons not to like it. On the one hand, you have to like the idea that most everyone will have access to health care and that your own access to health care will be protected against insurance company shenanigans like barring you for a pre-existing condition if you change jobs or dropping you just when you get sick. (I mean, really, does anyone think this part is bad in itself?) On the other hand, you can legitimately question whether it's going to work. You can wonder if it's going to help contain costs. You might think it involves too much government regulation. And you can be opposed to government telling people that they have to buy health insurance even if they don't want to (although the whole thing can't work without that part).

We could have a real discussion about whether health care reform is a good idea. But it's impossible to have a real discussion when the debate is hijacked by people who reduce everything to negative labels, whether or not the labels actually apply. I particularly dislike people who are obviously just parroting other people's talking points.

People who say that anyone who supports health care reform must be a socialist don't know what socialism is. Socialism is "a theory or system of social organization that advocates the vesting of the ownership and control of the means of production and distribution, of capital, land, etc., in the community as a whole." A socialist government would abolish private health insurance companies altogether -- and would probably take over the hospitals and doctors too.

The actual health care reform bill that Congres passed doesn't abolish private health insurance companies (much less the private doctors and hospitals). It regulates private insurers by prohibiting them from discriminating based on health status. To make that regulation work, it requires everyone to have health insurance (otherwise only sick people would buy it and the insurers would go bankrupt). And then to make that possible it provides subsidies for those who would otherwise have difficulty buying health insurance. But health insurance will still be privately provided.

Ironically, those who decry health care reform as socialism are the very same people who attack it for allegedly weakening Medicare, which is a lot more like socialism than the health care reform law, because Medicare does involve the government itself providing health insurance. If you're so strongly opposed to socialism, you should be for abolishing Medicare, not for saving it from health care reform.

I'm a strong believer in capitalism, but I also believe some government regulation can help society. I would be happy to have a serious debate with anyone who wants to critique health care reform. I'm sure I would learn a lot from such a debate -- as I said, I don't understand all the details of the new law yet. But I can't stand listening to people who do nothing but spout canned talking points that they don't even understand.

Majority Rule -- What a Concept

Here's a radical idea -- why don't we (a) hold elections, (b) let our elected representatives adopt laws by majority vote, and (c) let the people show whether they like the results by voting in the next election?

The past week has shown just how different our government could be if we used this simple system, which might be called "democracy." So long as the Senate is not tied down by the absurd, anti-democratic filibuster rule, Congress can actually accomplish big things, and what's more, it can accomplish them quickly. The House of Representatives passed a series of fixes to the health care reform bill, the Senate (by a healthy 56-43 majority) adopted them with just a couple of tiny changes, and the House agreed to the changes -- all within a week!

The minority party got its say. In the Senate, the Republicans proposed 41 amendments, all of which got a vote. They all lost, but guess what, when you're in the minority, and you propose things the majority doesn't want, you are likely to lose.

It was democracy in action. Just imagine what our government could be like if the Senate could act by simple majority vote all the time. Health care reform could have been passed months ago. All those ugly political payoffs -- the Cornhusker Kickback, the Louisiana Purchase (some of which were removed by the fix bill) -- would have been unnecessary. Congress could have done what was best instead of having to produce a legislative package held together with Scotch tape and bubble gum.

And health care reform is just one of the many things that would probably have been accomplished already. Financial reform, improved regulation of the industries that nearly destroyed our national economy and had to be bailed out to the tune of $1 trillion in taxpayer money, consumer financial protection, protection against global climate change -- all these could probably have been accomplished, or be near completion, if not for just one thing: the filibuster rule in the Senate.

That rule must go. The people voted for substantial Democratic majorities in the last election. Let the majority have its way. If the people don't like the result (as the Republicans claim the people won't), fine, vote the Dems out. If a Republican majority gets elected, let it have its way. And if the people don't like what comes of that, vote them out, and so on, until we get politicians who understand what the people want. But no one can like a system in which it doesn't matter who gets elected because nothing can ever change anyway.

Poor Bubby

That poor, put-upon John Roberts. He's only the Chief Justice of the United States, and he actually had to sit there in silence while the President criticized the Supreme Court's decision in Citizens United during this year's State of the Union address. Now the Chief Justice is calling the President's remarks "very troubling." It wasn't absolutely wrong for the President to criticize the decision, the Chief Justice says, but the setting and the circumstances made the President's actions inappropriate.

What nonsense. Let's get this straight. According to the Chief Justice, it's perfectly OK for the Supreme Court to diss the entire Congress and the President too, by striking down the campaign finance laws that Congress passed and the President signed. That kind of critique has actual effect: the Supreme Court officially undoes the official handiwork of the other branches. And that's perfectly fine.

But whoa, we can't have the President talk about and criticize the Supreme Court's decision, even though that kind of critique has no official effect whatever, and at worst gives a few Supreme Court Justices an uncomfortable moment.

The Chief Justice is mistaken. But he's only doing what so many in Washington mistakenly do -- thinking that form is more important than substance. He thinks talking about what another branch does is a harsher, nastier treatment than officially negating what another branch does.

When asked whether the President's speech was appropriate, a better answer for the Chief Justice would have been, "the President, or anyone else, has every right to criticize the Supreme Court's decisions. Of course, the Supreme Court Justices and other federal judges are given life tenure by the Constitution so that we don't have to worry when people criticize us. The President is free to say what he wants, but it will have no effect, either way, on the Court's decisions."

And by the way, Mr. Chief Justice, no one is forcing you to attend the State of the Union address. If you're too delicate to be criticized, stay on your own turf.

Hold On

If reports are to be believed, Senator Richard Shelby has placed holds on all of President Obama's currently pending nominees, apparently because he didn't get a couple of earmarks for Alabama.

This kind of behavior is an example of how absurd things are getting in the Senate. It's bad enough that any 41 Senators can block the other 59 from doing just about anything. But a hold allows one Senator to wreak havoc with the Senate's schedule.

One might ask, why doesn't the majority leader simply stop allowing holds? Unlike the 41-Senator filibuster, which at least has a firm basis in the Senate's rules, the "hold" practice is an informal custom. Originally, holds were designed as a courtesy to Senators who had a scheduling conflict with an important vote, but they've metastasized into a constant stalling tactic. So why not stop recognizing them?

The problem is that the Senate does almost everything by unanimous consent. A hold, while not formally recognized in the rules, amounts to a threat to conduct a filibuster, which is recognized. It particularly amounts to a threat not to consent to a unanimous consent request.

So when the majority leader seeks unanimous consent that the Senate vote on a nomination at a particular time, the "holder" can object. Then the majority leader would have to move that the Senate take up the nomination, and that motion could be filibustered. And while the majority leader might easily have the votes to invoke cloture, cloture doesn't result in a vote; it just starts the clock on thirty hours of debate. Then there's a vote. And that's just the vote on the motion to take up the matter. Then another cloture vote is needed to bring debate to a close, following which debate takes another thirty hours. So the "holder" is threatening that if he or she is not appeased, the matter will eat up nearly a whole week of precious Senate calendar time.

So as usual, what is really needed is a fundamental reform of the Senate's rules. The House of Representatives is famous for allowing individual members and the minority party as a whole too little influence on what happens. But the Senate allows too much. One member can tie the whole body up in knots. The result is too much appeasement of minority interests.

Question Time

How'd you like that debate between President Obama and House Republicans? Pretty cool, huh? Republicans members of the House of Representatives got to ask any question they wanted, straight to the President of the United States, and the President answered. And the whole thing was televised. That was the unprecedented part. Presidents have gone to meetings of the opposition party and answered questions before, but ususually the Q&A session is secret. This time the whole country got to see a lively debate between the President and opposition party members. Here's some video.

Well, if you liked that, how would you like it if we had a similar session once a week? That's right, how about the President of the United States, appearing before the House of Representatives, or maybe before the Senate, once a week, with opposition members asking him questions. And why limit it to opposition members? Let's allow any member to ask the President a question, with special attention given to opposition leaders, but bringing in rank-and-file members on both sides. And the whole thing on television. The public would get a lively, weekly debate on the issues of the day.

Well, if we lived in Britain, that's exactly what we would have. Every Wednesday at noon, the prime minister appears before the House of Commons and takes whatever questions about public issues that any member of Parliament cares to ask. If the Prime Minister is out of town, the Leader of the House (equivalent to our Majority Leader) answers instead.

The Speaker of the House (who, unlike the Speaker of our House of Representatives, is a neutral, non-partisan official) moderates the debate. The Speaker calls first on a member chosen at random, then, if the first member was from the opposition, on a random member of the majority, and then on the leader of the opposition -- at which point all the opposition members chime in, "Hear, hear." The leader of the opposition gets to ask about five or six questions, then another random majority party member gets a turn, and then the leader of the largest third party (currently the Liberal Democrats) gets a couple of questions, and then it's just random "backbenchers," as rank-and-file members are called in Britain, for the remainder of the time. The Prime Minister has to answer -- well at least he has to say something, he doesn't always answer the question asked. Throughout, members chime in with cheers, hoots, catcalls, and other outbursts, which the Speaker has to repress from time to time, with his signature cry of "Order, order."

To see the weekly show, go to the House's website's video section, choose any Wednesday, and go to about 30 minutes in. You'll see a lively debate, and you'll also see how much better Parliament's website's video is than the C-SPAN archive. C-SPAN's archive is appallingly difficult to watch. With the House of Commons, you have easy access to the whole day's proceedings in one click.

Festina Lente

Who'll be the first to decry jumping to hasty conclusions about the arrest of James O'Keefe, the young videojournalist whose undercover videos posed such problems for ACORN last year, for allegedly plotting to do something (it's not clear exactly what) to the telephones in the office of Senator Mary Landrieu?

How about Scott W. Johnson, a co-founder of the conservative blog, "Power Line"? In response to the arrest, he said, "It sounds like it was another kind of journalism project, maybe a misguided one — I'm open minded — but there's so little information it's impossible to say anything intelligent about it."

An excellent attitude. I'm sure all of O'Keefe's defenders took the same open minded, cautious approach when O'Keefe's ACORN videos first broke. One wouldn't want to jump to any hasty conclusions. Festina lente -- an excellent rule for all pundits on either side of a debate to follow.

The Future of Health Care Reform

Does Scott Brown's victory in Massachusetts kill health care reform? Not necessarily. First of all, as I pointed out yesterday, the Democrats still have a 60-vote majority in the Senate until the election results are certified, which will probably take at least ten days. So they could pass the bill if they moved fast enough.

But there's another, even more important way forward: make the bill so popular that even some Republicans have to vote for it. President Obama can do that with the kind of rhetorical and leadership skills he displayed so well during the election campaign.

If I had President Obama's ear, here's what I would say:

Under President Bush, the Republicans never had more than 55 seats in the Senate and Bush got pretty much everything he wanted. Heck, he got us to go to war against Iraq, on the ground that terrorists from other countries had attacked us! And that was when the Republicans had just 49 seats in the Senate.

How did he do it? Well, for one thing, when Bush wanted something, you sure knew what it was, and he mentioned it every day. Every day, President Bush, and Donald Rumsfeld, and Condaleeza Rice, and Paul Wolfowitz were out there telling us that it was essential that we invade Iraq. Their case was totally weak, but they talked it up so much that the Senate was compelled to vote for it.

So why not try the same strategy? Talk about health care every day. You, and Kathleen Sebelius (the Secretary of HHS), and Regina M. Benjamin (the Surgeon General), and other appropriate senior officials should explain every day why America needs health care reform.

You certainly have a stronger case than Bush did for the Iraq war. You also have the rhetorical gifts to make that case. You can make the public demand health care reform. And then the Senate will have to vote for it.

Just remember: Yes we can!