Commentary Magazine


Topic: filibuster

On Filibuster and Executive Action, Beware the Lure of Reciprocity

The opportunity to curb the expansion of power in American governance and to prevent its establishment as a new status quo presents itself with the first transfer of power after the policy change. The Cold War architecture put in place by the Truman administration was criticized, but ultimately held steady, by Eisenhower, essentially solidifying a bipartisan postwar Washington consensus. The war on terror established by the Bush administration was demagogued endlessly by Barack Obama–until Obama became president himself. The war on terror is now a bipartisan Washington consensus. So what will be with the Obama era’s expansion of authority?

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The opportunity to curb the expansion of power in American governance and to prevent its establishment as a new status quo presents itself with the first transfer of power after the policy change. The Cold War architecture put in place by the Truman administration was criticized, but ultimately held steady, by Eisenhower, essentially solidifying a bipartisan postwar Washington consensus. The war on terror established by the Bush administration was demagogued endlessly by Barack Obama–until Obama became president himself. The war on terror is now a bipartisan Washington consensus. So what will be with the Obama era’s expansion of authority?

The most controversial was Obama’s own power grab: his end-run around Congress “to change the law” (in Obama’s own words) on immigration by approving an executive amnesty. But there was also Harry Reid’s decision to nuke the filibuster in order to pack courts to protect ObamaCare. Both have touched off a debate on the right over how to respond. The Reid Senate’s change in rules and norms is less headline-grabbing than Obama’s, of course; but it’s more pressing: Republicans are about to take over control of the Senate. The question of whether and how to mimic Obama’s precedent-setting immigration action is still hypothetical: Republicans have to win the White House before it matters.

But both are significant. And they have given rise to a “taste of their own medicine” caucus in the conservative movement, demonstrating the lure of power and retribution even in democratic politics.

Conservatives are debating whether to use what might be called the “Reid Rule” and the “Obama Rule” if and when they next have the opportunity to do so. Should they use the precedent of executive action to effectively change the way Americans are taxed, for example? And should they reassemble the filibuster that Reid took apart or leave it in its crumpled heap, the better to confirm their nominees as well?

And here it is important to make a distinction. Some want to use the Democrats’ newly created power because turnabout is fair play and unilateral disarmament is to embrace doormat status. Others want to use those expanded powers in order to return preexisting rules and norms to their proper place, because to use those powers for conservative ends would show liberals–who would lose their minds–the consequences of such power grabs, thus establishing deterrence.

As an example of the first, we have Utah Senator Orrin Hatch’s comments, as reported by The Hill today:

We shouldn’t return to the old [filibuster] rule. We should teach these blunderheads that they made a big mistake. And we have the votes to stop bad judges if we want to. And frankly I intend to win with our candidate the presidency in 2016 and we will give them a taste of their own medicine.

“Blunderhead” may be the nicest thing anyone has ever said about Harry Reid.

As an example of the latter, we have Gabriel Malor’s piece in the Federalist two weeks ago. Malor was responding to Charles C.W. Cooke’s National Review Online column warning against embracing the power grab: “As a didactic exercise, this approach is all well and good. And yet, I have of late begun to see some on the Right treating the tactic as more than just idle levity or debaters’ flair. Rather, they have started to mean it. … I am afraid that I consider this approach to be little short of suicidal, and I can under no circumstances look forward to a system in which the executive may pick and choose which laws he is prepared to enforce.”

Malor responded that the president’s executive amnesty was not his first use of the Obama Rule. He has been, in Malor’s appropriate phrasing, “a non-executing executive” with regard to DACA (an earlier immigration action), unilateral delays of unpopular ObamaCare requirements, and now executive amnesty. There is no mechanism to stop him, according to Malor; impeachment is off the table, as is shutting down the government:

Which means that we are living in a crapsack world where Democratic presidents get to make an end run around Congress when they find it convenient to do so. And yet, Cooke writes that Republican presidents should nevertheless voluntarily hold themselves bound to an altogether more restrictive code of behavior. This unilateral disarmament would be political suicide. It leads directly to a world where Democratic programs and policies are easily implemented and enforced, but where Republican ideas face a host of self-inflicted procedural hurdles, followed by the chance that even if a conservative idea were to become law, a Democratic executive could simply ignore it.

This is probably the best case for conservatives to put limited-government principles on hold and join the arms race. But perhaps it’s not quite fair to say proponents of using the Obama Rule are truly setting aside their principles. The argument, really, is that it might be the only way left to return to past norms by inspiring a mutual ceasefire.

I think conservatives would, understandably, very much like this to be true. But I don’t think that it is.

History shows that the surest way to cement a status quo, especially regarding presidential power, is for it to be adopted by the next president of the other party. Presidents rarely (in the modern era, it might even be accurate to say “never”) unilaterally give up authority that has been vested in the office by their predecessors. Thanks to the media, Republicans would also likely lose this fight in the court of public opinion.

As for the filibuster, it is far less crucial to the future of American constitutional governance than bold expansions of presidential authority. It also has some arguably detrimental uses, for example against judicial nominees, where there is some bipartisan support for setting it aside. There’s room for Hatch to stick it to Reid without undermining the American system of government, but not a ton of room. I’m not sure that’s true about the Obama Rule. And conservatives must be realistic about the implications of taking such action themselves.

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Can Washington Get Worse? You Bet it Will.

The main justification put forward by Democrats defending their decision to blow up the Senate rules and end filibusters on Cabinet and judicial nominations is that things are so bad now, they can’t get worse. That’s the spin President Obama put on the situation yesterday as he took a rare turn in the White House press room to spike the football after Majority Leader Harry Reid pushed through the measure he hopes will allow him to pack the federal courts with liberals. This idea is integral to the president’s argument that Republican obstructionism has made it impossible for him to govern. Even on topics where Republican input has been nil such as the ObamaCare rollout, Democrats have stuck to this theme blaming Republicans for stirring up dissent against their unpopular dysfunctional legislation even as most Americans have focused on the president’s broken promises and a dysfunctional website.

There’s no denying that partisanship is nastier in Congress than it once was. But if President Obama and Reid think it can’t get worse, they’re kidding themselves. For all of the bitter combat that has been carried on in just the last year over the budget, ObamaCare, the shutdown, and the various administration scandals, the business of government has largely proceeded unhindered. Many nominations have been approved, bipartisan legislation passed, and the unanimous consent to keep the upper body functioning has almost always been there. But now that Reed has pushed the plunger on the so-called nuclear option, all bets are off. The 45 Senate Republicans may no longer have the power to block the president’s appointments on their own, but Senate procedures still give them plenty of latitude to put holds on legislation. Not only will Reed find it even harder to do his job now that he has broken faith with his opponents and sought to squelch dissent, he and the president may also discover that the benefits of their decision will not be as great as they think.

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The main justification put forward by Democrats defending their decision to blow up the Senate rules and end filibusters on Cabinet and judicial nominations is that things are so bad now, they can’t get worse. That’s the spin President Obama put on the situation yesterday as he took a rare turn in the White House press room to spike the football after Majority Leader Harry Reid pushed through the measure he hopes will allow him to pack the federal courts with liberals. This idea is integral to the president’s argument that Republican obstructionism has made it impossible for him to govern. Even on topics where Republican input has been nil such as the ObamaCare rollout, Democrats have stuck to this theme blaming Republicans for stirring up dissent against their unpopular dysfunctional legislation even as most Americans have focused on the president’s broken promises and a dysfunctional website.

There’s no denying that partisanship is nastier in Congress than it once was. But if President Obama and Reid think it can’t get worse, they’re kidding themselves. For all of the bitter combat that has been carried on in just the last year over the budget, ObamaCare, the shutdown, and the various administration scandals, the business of government has largely proceeded unhindered. Many nominations have been approved, bipartisan legislation passed, and the unanimous consent to keep the upper body functioning has almost always been there. But now that Reed has pushed the plunger on the so-called nuclear option, all bets are off. The 45 Senate Republicans may no longer have the power to block the president’s appointments on their own, but Senate procedures still give them plenty of latitude to put holds on legislation. Not only will Reed find it even harder to do his job now that he has broken faith with his opponents and sought to squelch dissent, he and the president may also discover that the benefits of their decision will not be as great as they think.

On the surface, it would seem that the president now has carte blanche to do what he has longed to accomplish since moving into the White House: fundamentally alter the balance of the federal courts by packing federal district and appeals courts with the kind of hard-core ideological liberals that were being blocked by filibusters. He may well attempt to do that in the coming 12 months before the midterm elections give the GOP an opportunity to win back the Senate. But those who assume this will now become as easy as pie have forgotten about what will be uppermost on the minds of the several red-state Democrats who face uphill reelection fights next year.

As Josh Gerstein points out in Politico, the roster of potential liberal judges is filled by the ranks of left-wing jurists and lawyers that had little chance of getting the 60 votes they needed under the old rules. But getting to 51 votes may not be so easy for these liberals when you consider that many of the Democrats the president is counting on won’t want to hand their Republican opponents new talking points by rubber-stamping ideological judges. While some may get through, any controversial nominee will find themselves being thrown under the bus by moderate Democrats who can no longer count on the GOP or the filibuster rules to save them from a vote they’d rather not take.

But that’s just the most obvious fallout from Reed’s move. Just as important is the way the rules change will now make it impossible for bipartisan coalitions to be assembled. The Senate has become more like the House in recent years as firebrand newcomers on both sides of the aisle have replaced old warhorses. But as we saw with immigration reform this year, for all the bitterness in D.C., enough conservatives and liberals were still able to work together to get a bill passed in the Senate. But after the president’s scorched-earth approach to the shutdown and the nuclear option being employed, you can forget about anything like that happening again in the foreseeable future. This will alter the nature of the Senate far more than anything we have seen before. The Tea Party had made it tough for Republicans to work with Democrats in the last three years. But the president has now ensured that even those inclined to ignore them will also refuse to play ball.

The Democrats’ mindset is based on an assumption that when the Republicans got control of the Senate again, whether in 2015 or at some later date, they would have employed the nuclear option as they threatened to do first in 2005 when Democrats were defending the filibuster. At this point, there’s no longer any way of knowing whether that would have happened even if the Democrats hadn’t struck first. Up until this point, it’s doubtful that we’ve ever had a Senate majority leader so incapable of working with the minority as Reid has shown himself to be. Perhaps Mitch McConnell or his successor would have wound up doing the same, but since the Republicans always backed away from pushing the button on the filibuster that question is now in the realm of counter-factual fiction, not serious analysis. But what we do know now is that it is highly unlikely that the GOP will refrain from playing just as rough in the future when it is their turn to control the Senate.

That’s why Democrats do well to avoid celebrations of their move. The benefits from it to President Obama will be minimal. But the costs in terms of dysfunction and the certainty of even worse political warfare to come are considerable. 

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Democrats’ “Nuclear Option” Logic: Formalizing Thoughtlessness

President Obama’s public statement yesterday about the Democrats eliminating the filibuster for their agenda items so as to further purge minority input was, as usual, deceptively revealing. It’s not that the president said anything intelligent or edifying in itself; his grasp on the details of policy isn’t strong enough to educate the public. Additionally, this particular episode is really quite simple.

When the Democrats were in the minority, they broke the accepted norms of the Senate to block a circuit court nominee they didn’t like. Recently, Republicans employed that same tactic on President Obama, so Harry Reid escalated the fight by breaking even more important norms of the Senate. This has been the pattern throughout Reid’s time as Democratic Senate leader: introduce an innovation designed to undermine the Senate’s rules and integrity, and then when Republicans return the favor simply find some other way to erode any check on his power.

And that, in turn, is at the center of this: power. When Barack Obama was in the Senate and the Republican majority threatened to employ this “nuclear option,” then-senator, now-hypocrite Obama said this:

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President Obama’s public statement yesterday about the Democrats eliminating the filibuster for their agenda items so as to further purge minority input was, as usual, deceptively revealing. It’s not that the president said anything intelligent or edifying in itself; his grasp on the details of policy isn’t strong enough to educate the public. Additionally, this particular episode is really quite simple.

When the Democrats were in the minority, they broke the accepted norms of the Senate to block a circuit court nominee they didn’t like. Recently, Republicans employed that same tactic on President Obama, so Harry Reid escalated the fight by breaking even more important norms of the Senate. This has been the pattern throughout Reid’s time as Democratic Senate leader: introduce an innovation designed to undermine the Senate’s rules and integrity, and then when Republicans return the favor simply find some other way to erode any check on his power.

And that, in turn, is at the center of this: power. When Barack Obama was in the Senate and the Republican majority threatened to employ this “nuclear option,” then-senator, now-hypocrite Obama said this:

What [Americans] don’t expect is for one party – be it Republican or Democrat – to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet. … I sense that talk of the nuclear option is more about power than about fairness. I believe some of my colleagues propose this rules change because they can get away with it rather than because they know it’s good for our democracy.

Obama’s support for the nuclear option now is understandable: his legacy, after all, will be what he did as president, not senator. Reid, on the other hand, will have left behind an institution barely recognizable as the one he joined a quarter-century ago. Obama was part of that institution for about five minutes before he geared up to run for president, so he has no intellectual or emotional attachment to the Senate.

But what was revealing about what Obama said yesterday was not the hypocrisy–something that has been a hallmark of his political career and especially his presidency. It was when he said this:

Now, I want to be clear, the Senate has actually done some good bipartisan work this year.  Bipartisan majorities have passed common-sense legislation to fix our broken immigration system and upgrade our courts — our ports.  It’s passed a farm bill that helps rural communities and vulnerable Americans.  It’s passed legislation that would protect Americans from being fired based on their sexual orientation.  So we know that there are folks there, Republican and Democrat, who want to get things done.  And, frankly, privately they’ve expressed to me their recognition that the system in the Senate had broken down, and what used to be a sporadic exercise of the filibuster had gotten completely out of hand.

In other words, the Senate is basically working and the president knows it. Its role as a deliberative body has not stopped it from passing major bipartisan legislation on even complicated and divisive issues, as the president admits. The president took no questions after his statement yesterday because his position is frankly indefensible, which he seems to recognize. (And possibly his disastrous press conference on ObamaCare last week has convinced him that when he goes off-script he swiftly loses all coherence.) But had he taken a question, he might have been asked about the most obvious refutation of his new support for a less thoughtful Senate: his signature “achievement.”

Indeed it is appropriate that the two coincide. We are currently dealing with the latest major wave of disastrous effects on the country’s economy and health care inflicted by ObamaCare. What happens when the “world’s greatest deliberative body” is turned into a partisan weapon? We get bills like ObamaCare. Politico now reports:

Veteran House Democratic aides are sick over the insurance prices they’ll pay under Obamacare, and they’re scrambling to find a cure.

“In a shock to the system, the older staff in my office (folks over 59) have now found out their personal health insurance costs (even with the government contribution) have gone up 3-4 times what they were paying before,” Minh Ta, chief of staff to Rep. Gwen Moore (D-Wis.), wrote to fellow Democratic chiefs of staff in an email message obtained by POLITICO. “Simply unacceptable.”

That would be the Gwen Moore who voted for ObamaCare. Moore serves in the House, but it’s much the same in the Senate. This is a symptom of the broader problem with ObamaCare. Democrats are claiming they didn’t know the bill does what it does–witness the frantic Democratic response to the evaporation of all the major promises used to pass the bill. Now, they’re either lying when they say they didn’t know what was in the bill they voted for, or they’re admitting that they have no idea what they’re doing when they cast votes, and are just following orders from the White House and Harry Reid.

Here’s Democratic Senator Mary Landrieu announcing her bill earlier this month that if you like your plan, you can keep it–to fix Obama’s false promise. Yet ObamaCare was plainly crafted to ensure that people would lose their insurance. And Landrieu voted for it. Then in September 2010 Landrieu helped the Democrats kill a GOP resolution that would have prevented many of those cancellations. Did she not read ObamaCare? Did she not read the 2010 resolution?

If there’s anything wrong with the Senate in the age of Obama and Reid, it’s that Democrats are desperately in need of rules that would slow debate and encourage deliberation, now more than ever. Instead, they’re moving in the opposite direction, because, as the president himself said, that’s where the power is.

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Ted Cruz and the Conservatism of Illusion and Deception

I disagree somewhat with Jonathan’s earlier post on Ted Cruz. There are several things I found problematic about the effort by Cruz and Company to “defund” the Affordable Care Act (ACA), but perhaps what was most alarming, from a conservative perspective, is that it was an effort utterly detached from reality.

As I’ve argued several times before (including here), this whole gambit was based on the fiction, perpetrated by Cruz and others, that the Affordable Care Act could be defunded (without even a single Democratic vote, according to Cruz). That was never true. That goal was an illusion. A mirage. A delusion. And surely Mr. Cruz, an intelligent and well-educated man, knew it. There was simply no way a Democratic Senate and Barack Obama would abolish his signature domestic achievement. And defunding the ACA would require just that.

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I disagree somewhat with Jonathan’s earlier post on Ted Cruz. There are several things I found problematic about the effort by Cruz and Company to “defund” the Affordable Care Act (ACA), but perhaps what was most alarming, from a conservative perspective, is that it was an effort utterly detached from reality.

As I’ve argued several times before (including here), this whole gambit was based on the fiction, perpetrated by Cruz and others, that the Affordable Care Act could be defunded (without even a single Democratic vote, according to Cruz). That was never true. That goal was an illusion. A mirage. A delusion. And surely Mr. Cruz, an intelligent and well-educated man, knew it. There was simply no way a Democratic Senate and Barack Obama would abolish his signature domestic achievement. And defunding the ACA would require just that.

No matter. Senator Cruz, along with several of his colleagues, convinced many grassroots conservatives and Tea Party members that the end game was to put a stake through the heart of ObamaCare, once and for all. If you sided with them, you were a principled conservative who opposed ObamaCare; if you were against them, you were part of the “surrender caucus.” This was cast as a Moment of Truth. 

Now the whole thing is being exposed for what it was – a game. And the (inevitable) failure by Cruz and the others will leave these people crushingly disappointed and enraged. They were led to believe something that was simply not true – and many of them still don’t know they were misled.

Beyond all that is the damage this inflicts on conservatism. Conservatism, after all, is a political philosophy that is (or should be) anti-utopian, empirical, prudent, somewhat modest in its expectations and firmly grounded in reality. That’s certainly not all that conservatism is, but those elements comprise it. Yet here we are, with a large part of the conservative movement having taken a journey through the looking glass.

This whole episode was a low moment for genuine conservatism. 

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Cruz’s Grand Gesture Deserves Respect

In the end, Ted Cruz didn’t mean it. Neither he nor any of his colleagues that had been urging Republicans to filibuster the House bill that defunded ObamaCare and which they had been previously asking for voted to deny cloture on the measure. The 100-0 result in the immediate aftermath of Cruz’s 20-hour filibuster that wasn’t technically a filibuster showed that he and other GOP senators like Mike Lee hadn’t taken leave of their senses. Had 39 other Republicans listened to them—and their ardent followers on Twitter who called anyone who said they would approve a vote on the bill RINOs—then the GOP would have been launching a government shutdown by a procedural technicality that would have made for some very bad optics and an impossibly weak argument. That showed good judgment on their part. The same can be said for Cruz’s talkathon that stretched from early Tuesday afternoon to noon on Wednesday.

As Bethany noted earlier today, the almost universal hostility that Cruz’s publicity stunt generated is as blatant an example of media bias as we are likely to get. A few months ago, the press transformed Texas State Senator Wendy Davis into a national heroine for her equally pointless filibuster defending late term abortion. But since most of the media likes ObamaCare almost as much as they approve of any kind of abortion, Cruz was condemned for taking up the Senate’s time. But Cruz’s stunt wasn’t the disaster that his critics are calling it. I disagreed vehemently with the senator’s efforts to create a standoff that could shut down the government in order to defund ObamaCare. But his marathon speechifying was neither foolish nor did it hurt Republicans the way a shutdown would. Instead, it did exactly what the hashtag created by his followers to celebrate the event wished for: It made Washington listen to complaints about ObamaCare.

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In the end, Ted Cruz didn’t mean it. Neither he nor any of his colleagues that had been urging Republicans to filibuster the House bill that defunded ObamaCare and which they had been previously asking for voted to deny cloture on the measure. The 100-0 result in the immediate aftermath of Cruz’s 20-hour filibuster that wasn’t technically a filibuster showed that he and other GOP senators like Mike Lee hadn’t taken leave of their senses. Had 39 other Republicans listened to them—and their ardent followers on Twitter who called anyone who said they would approve a vote on the bill RINOs—then the GOP would have been launching a government shutdown by a procedural technicality that would have made for some very bad optics and an impossibly weak argument. That showed good judgment on their part. The same can be said for Cruz’s talkathon that stretched from early Tuesday afternoon to noon on Wednesday.

As Bethany noted earlier today, the almost universal hostility that Cruz’s publicity stunt generated is as blatant an example of media bias as we are likely to get. A few months ago, the press transformed Texas State Senator Wendy Davis into a national heroine for her equally pointless filibuster defending late term abortion. But since most of the media likes ObamaCare almost as much as they approve of any kind of abortion, Cruz was condemned for taking up the Senate’s time. But Cruz’s stunt wasn’t the disaster that his critics are calling it. I disagreed vehemently with the senator’s efforts to create a standoff that could shut down the government in order to defund ObamaCare. But his marathon speechifying was neither foolish nor did it hurt Republicans the way a shutdown would. Instead, it did exactly what the hashtag created by his followers to celebrate the event wished for: It made Washington listen to complaints about ObamaCare.

Cruz is the kind of politician for whom style often becomes substance. He is an equal opportunity bull in a China shop that has dissed GOP Senate elders as well as Democrats ever since he arrived on Capitol Hill. Though he is clearly as smart if not a lot smarter than most of his colleagues, his obnoxious personality is tough for most of them to take. The same goes for the media and even sections of the public. If I have doubts about him really being presidential timber it is not so much that I disagree with some of his stands but because I don’t believe anyone who comes across as a mean guy, as Cruz undoubtedly has to much of the public, could ever be elected president.

But this is a moment when credit must be given where credit is due. His filibuster was a model of reasoned argument in which he labored mightily to call attention to the fact that the American people are unhappy about the way a Democratic Congress forced ObamaCare down their throats. They are rightly worried about the way it will affect their own health care as well as the potentially devastating impact it will have on the economy as jobs are killed and costs rise. Call it what you like and acknowledge that like Rand Paul’s far less substantial argument about drone attacks in his filibuster earlier this year, his motivation had a lot to do with his desire to run for president in 2016.

But there is something grand about a filibuster and Cruz’s stand deserves the same applause that the media was willing to give to Paul as well as Davis.

As was the case with Paul—whose arguments I disagreed with—Cruz showed there is still space in our public square for principled and high minded debate on the issues. In an era in which sound bytes dominate and in which even most politicians generally shun traditional oratory with the gift for gab, filibusters are a unique opportunity for the participants to riff on big issues and do more than merely give cable news the catch phrases they are asking for. Filibusters give the Senate the kind of glamour that was once associated with it in bygone eras and even if we are well rid of some of the traditions of the past they raise the level of discourse in a way that should be applauded.

I still think Cruz’s efforts to galvanize support for what is, despite his denials, an attempt to shut down the government over the issue, are ill considered and seem mostly focused on increasing his own growing following. But the sniping at Cruz’s filibuster from a media that was ready to lionize Davis and focus on her fashion choices should be dismissed. So, too, should that coming from many of his colleagues among whom he has already worn out his welcome.

Republicans should not be trying to shut down the government but they should seize every opportunity to discuss the ObamaCare disaster. Though the Senate is now moving on and the House will have an opportunity to step back from the brink toward which Cruz has pushed them, the Texas senator deserves credit for stopping the machinery of the Senate for a day to highlight the assault on the nation’s liberties and its economy that ObamaCare represents. So long as the Democrats control the Senate and the White House, more than that is not possible. That frustrates conservatives and leads many to lash out and seek to do the impossible. But anyone who doubts that Cruz did himself a world of political good with this gesture misunderstands both the issue and the conservative movement. We can’t know for sure what the future holds for Cruz but in the last 24 hours we got a glimpse of his political talent. That should scare Republicans and Democrats who will clash with him in the years to come.

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Dem Filibuster Win Doesn’t Change Much

The aftermath of yesterday’s agreement to end Republican filibusters of several of President Obama’s nominees to federal posts is being widely interpreted as a severe defeat for Minority Leader Mitch McConnell and his caucus. After holding up several appointments, the GOP conceded the confirmation of Richard Cordray as director of the controversial Consumer Financial Protection Bureau. In exchange, the president withdrew his two nominees for the National Labor Relations Board that Republicans had challenged in court as being illegally put into office via bogus recess appointments, but immediately nominated replacements that will presumably not be filibustered. In exchange for this, Majority Leader Harry Reid withdrew the threat of a “nuclear option” that would stop filibusters on presidential appointments, though not judicial nominations or ordinary legislation.

Taken in sum, McConnell’s critics are probably right to say this is a victory for the Democrats and a setback for the GOP caucus. But while the deal gives Reid a rare good day as well as helping the president pack the federal apparatus as he likes, the idea that this is a turning point in the struggle between the parties that will enable the president to successfully implement his second term agenda is an exaggeration at best. As much as the Republicans have been portrayed as a menace to the government, the ability of a minority—even Senate minorities—to obstruct a determined majority is not unlimited. Holding up nominations is the political equivalent of guerrilla warfare. Such tactics can annoy and wear down the opponent, but they won’t by themselves take down a president and no one in the Republican Party thought they could. Ending this particular standoff is merely one more round in an endless conflict in which the president and his Senate allies cannot claim more than a temporary small-scale victory.

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The aftermath of yesterday’s agreement to end Republican filibusters of several of President Obama’s nominees to federal posts is being widely interpreted as a severe defeat for Minority Leader Mitch McConnell and his caucus. After holding up several appointments, the GOP conceded the confirmation of Richard Cordray as director of the controversial Consumer Financial Protection Bureau. In exchange, the president withdrew his two nominees for the National Labor Relations Board that Republicans had challenged in court as being illegally put into office via bogus recess appointments, but immediately nominated replacements that will presumably not be filibustered. In exchange for this, Majority Leader Harry Reid withdrew the threat of a “nuclear option” that would stop filibusters on presidential appointments, though not judicial nominations or ordinary legislation.

Taken in sum, McConnell’s critics are probably right to say this is a victory for the Democrats and a setback for the GOP caucus. But while the deal gives Reid a rare good day as well as helping the president pack the federal apparatus as he likes, the idea that this is a turning point in the struggle between the parties that will enable the president to successfully implement his second term agenda is an exaggeration at best. As much as the Republicans have been portrayed as a menace to the government, the ability of a minority—even Senate minorities—to obstruct a determined majority is not unlimited. Holding up nominations is the political equivalent of guerrilla warfare. Such tactics can annoy and wear down the opponent, but they won’t by themselves take down a president and no one in the Republican Party thought they could. Ending this particular standoff is merely one more round in an endless conflict in which the president and his Senate allies cannot claim more than a temporary small-scale victory.

McConnell may have taken Reid to the brink in this confrontation, but, as was the case when their positions were reversed only a few years ago, beyond a certain point the smaller caucus must always give in to some extent. The confirmation of an agency head that has actually already been in place for more than a year is not a substitute for a viable legislative program or a coherent policy. Nor can it be portrayed as anything more than a tactical triumph with little or no carry-over to the rest of the president’s fading agenda.

There are two reasons why Democrats have to crow about the deal as a seminal event.

One is the obvious fact that, after being consistently stymied by a wily minority, Reid’s bluffs about the “nuclear option” at least allowed him to say that he got the better of McConnell for at least one day. Such days don’t happen very often in the Senate, as even with 55 seats and few moderates in his caucus to thwart the liberals, Reid often finds himself unable to outmaneuver his counterpart and—despite the complaints of many conservatives—rarely is able to get many Republican votes on virtually any matter of consequence.

The other reason goes to the liberal misconception about what the Republicans are doing. The president and many in his party really do believe the goal of the GOP is to literally stop the government from functioning. Thus, anytime they are able to do anything, such as getting his nominee to lead an agency Republicans would like to abolish confirmed, they tell themselves that they have thwarted a primary aim of their opponents. But this is a fundamental misunderstanding both of the Republicans and of what they hope to accomplish.

Few Republicans really thought they could hold off Cordray indefinitely anymore than they can stop Obama from filling any post if the Democrats care enough about it to make it an issue. The point of the delay was to call attention to their opposition to the agency and to lay the groundwork for attempts to change its structure—to give it a bipartisan leadership—or eventually abolish it. The same is true of the NLRB appointees who might well have been tossed out of their positions by the courts if Obama hadn’t backed down and agreed to replace them.

Reid may feel his nuclear threat about the filibuster will smooth the way for future Obama nominees, but he knows very well that if the president chooses to put forward people who are vulnerable to criticism, the GOP will be back with stalling tactics. Like momentum in baseball that depends on a team’s starting pitcher on each day, the outcome of the next battle has more to do with the identity of future appointees than it does with what happened yesterday.

More to the point, the greatest victory for the Democrats in this deal has nothing to do with Obama’s nominations and everything to do with his own dubious prospects for sitting at the majority leader’s desk in 2015. Since, as I wrote on Monday, even liberal pundit/prognosticator Nate Silver is predicting the GOP will emerge from the 2014 midterms with 50-51 seats, preserving the right to filibuster is just as important to the Democrats as it is to McConnell. The ease with which the long standoff was solved tells us as much about Reid’s desire to preserve the right to stall as it did about McConnell’s interests.

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The Real Reason Reid Wants to Go Nuclear

For those trying to figure out the current state of partisanship, comity, and cooperation in the U.S. Senate, recent news would only add to the confusion. For example, the Hill published a story yesterday afternoon headlined “GOP presses for quick confirmation of Obama UN ambassador pick.” That sounded encouraging for those who think the president should have a great deal of latitude in choosing his own advisors, and the article did not disappoint.

The Hill tells us that Republicans want the nominee, Samantha Power, in her office and settled in by the time the September meeting of the UN General Assembly rolls around. Despite some initial criticism, “Her confirmation is all but assured.” It’s difficult to square that report, which is true, with Democratic Senate Majority Leader Harry Reid’s insistence that the sky is falling in on the Senate’s confirmation process due to Republicans’ intransigence, which is false. As Politico reports, Reid appeared on Meet the Press yesterday to sell his plan to deploy the “nuclear option” to change filibuster rules to speed through certain nominees:

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For those trying to figure out the current state of partisanship, comity, and cooperation in the U.S. Senate, recent news would only add to the confusion. For example, the Hill published a story yesterday afternoon headlined “GOP presses for quick confirmation of Obama UN ambassador pick.” That sounded encouraging for those who think the president should have a great deal of latitude in choosing his own advisors, and the article did not disappoint.

The Hill tells us that Republicans want the nominee, Samantha Power, in her office and settled in by the time the September meeting of the UN General Assembly rolls around. Despite some initial criticism, “Her confirmation is all but assured.” It’s difficult to square that report, which is true, with Democratic Senate Majority Leader Harry Reid’s insistence that the sky is falling in on the Senate’s confirmation process due to Republicans’ intransigence, which is false. As Politico reports, Reid appeared on Meet the Press yesterday to sell his plan to deploy the “nuclear option” to change filibuster rules to speed through certain nominees:

“The changes we’re making are very, very minimal. What we’re doing is saying: ‘Look American people, shouldn’t President Obama have somebody working for him that he wants?’” Reid said. “If you want to look at nominations, you know what the Founding Fathers said: ‘Simple majority.’ That’s what we need to do.”

Reid is set to deploy the “nuclear option” — which would allow 51 senators to change the Senate rules instead of the 67 that are normally required. Triggering it would dislodge several stalled Obama nominees, and it would allow senators to approve executive branch nominees — not judicial nominees or legislation — by a simple majority.

If Cabinet nominees are already getting through just fine, and the proposed changes won’t help judicial nominees or legislation get around the filibuster and receive an up-or-down vote, we can ask why Reid wants the changes enough to “go nuclear.” We can also ask Republican Senate leader Mitch McConnell why he opposes such changes so staunchly. One answer is that the nomination changes apply to the Consumer Financial Protection Bureau and the National Labor Relations Board, the latter of which President Obama staffed up by making appointments the courts have found to be unconstitutional, and Republicans want to wait for the Supreme Court’s ruling on the matter.

But the more important answer has to do with a fundamental difference in how the two parties wish to govern–and contrary to what you may hear from the media, it reveals McConnell’s GOP to have far more respect for Congress and the legislative process than Reid’s Democrats.

I wrote about this last month, pointing readers to law professor Jonathan Turley’s column in the Washington Post about the “rise of the fourth branch,” the administrative state that has increasingly usurped Congress’s lawmaking authority without replicating the accountability or (relative) transparency. This is the crux of Turley’s argument:

For much of our nation’s history, the federal government was quite small. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical.

The recent scandals at the IRS and EPA, in which a government bureaucracy, egged on by powerful Democrats, absorbed the establishment’s liberal bias so thoroughly as to be actively targeting conservatives, prove both the efficacy and the inherent corruption in this worldview. Democrats understand that if they control the bureaucracy they can install “legislators” who remain anonymous, unelected, and unaccountable. Reid can be voted out of office, but the IRS cannot.

Where once the energetic and youthful liberal grass roots at least had an anti-authoritarian suspicion of government power and abuse, today the liberal movement is united in its belief that government must expand–and keep expanding. When liberal intellectuals swoon over China’s authoritarian rule, it isn’t because they are enamored of Chinese Communism but because the consolidation of power into a ruling elite is, to these intellectuals, an unfortunate means to a desirable end. Sacrificing a bit of freedom and democracy isn’t optimal to the professional left, but otherwise they’d have to pass up an opportunity to impose their dubious and unpopular environmentalist activism on the country.

And the same goes for financial regulation and public-union backslapping. That’s why Reid is willing to “go nuclear” not over judicial nominees or legislation but bureaucratic agencies. Reid isn’t defending the Congress’s traditional role by speeding up votes; he’s changing rules on the fly to further weaken Congress while striking another blow against transparency and democratic accountability. What he hopes is that Americans won’t realize what’s at stake before it’s too late.

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Why Rand’s Drone Flip-Flop Matters

Last month Rand Paul energized conservatives with a filibuster on the Senate floor that allowed a broad national audience to see him as a principled politician who was willing to fight for beliefs rather than go along with Washington’s business-as-usual culture. Some of us thought the rationale for his moment of glory—concerns about possible use of drones on U.S. soil as well as his general opposition to what he called a “perpetual war” against Islamist terrorists—were not justified. But even critics like myself thought his exhibition demonstrated that there is room for the sort of high-minded approach to public policy that was once considered normative in the U.S. Senate but which is now quite rare. But it didn’t take long for all of Paul’s speechifying about drones to be revealed as somewhat hypocritical.

Though the Kentucky senator spent 13 hours on his legs explaining to the Senate why there could be no conceivable justification for the use of government drones against American citizens on March 6, yesterday he took a position on Neil Cavuto’s show on Fox News that those of us who disagreed with him in the first place were advocating:

PAUL: Here’s the distinction, Neil. I’ve never argued against any technology being used when you have an imminent threat, an active crime going on. If someone comes out of a liquor store with a weapon and 50 dollars in cash, I don’t care if a drone kills him or a policeman kills him. But it’s different if they want to fly over your hot tub or your yard just because they want to do surveillance on everyone and they want to watch your activities.

CAVUTO: What if, in pursuit of a crime, they discover something else that looks bad?

PAUL: We shouldn’t be willy-nilly looking into everyone’s back yard into what they’re doing. But if there is a killer on the loose in a neighborhood, I’m not against drones being used to search them out, heat-seeking devices being used, I’m all for law enforcement, I’m just not for surveillance when there’s not probable cause that a crime’s been committed. So, most of the time, you get a warrant, but if someone’s actively running around with a gun, you don’t need a warrant. That’s the way the system works.

That sounds reasonable. But it’s not what he was saying seven weeks ago, when he held up the nomination of CIA Director John Brennan because Attorney General Eric Holder would not foreswear the possibility that there was any circumstance under which the government would use a drone against an American in the United States.

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Last month Rand Paul energized conservatives with a filibuster on the Senate floor that allowed a broad national audience to see him as a principled politician who was willing to fight for beliefs rather than go along with Washington’s business-as-usual culture. Some of us thought the rationale for his moment of glory—concerns about possible use of drones on U.S. soil as well as his general opposition to what he called a “perpetual war” against Islamist terrorists—were not justified. But even critics like myself thought his exhibition demonstrated that there is room for the sort of high-minded approach to public policy that was once considered normative in the U.S. Senate but which is now quite rare. But it didn’t take long for all of Paul’s speechifying about drones to be revealed as somewhat hypocritical.

Though the Kentucky senator spent 13 hours on his legs explaining to the Senate why there could be no conceivable justification for the use of government drones against American citizens on March 6, yesterday he took a position on Neil Cavuto’s show on Fox News that those of us who disagreed with him in the first place were advocating:

PAUL: Here’s the distinction, Neil. I’ve never argued against any technology being used when you have an imminent threat, an active crime going on. If someone comes out of a liquor store with a weapon and 50 dollars in cash, I don’t care if a drone kills him or a policeman kills him. But it’s different if they want to fly over your hot tub or your yard just because they want to do surveillance on everyone and they want to watch your activities.

CAVUTO: What if, in pursuit of a crime, they discover something else that looks bad?

PAUL: We shouldn’t be willy-nilly looking into everyone’s back yard into what they’re doing. But if there is a killer on the loose in a neighborhood, I’m not against drones being used to search them out, heat-seeking devices being used, I’m all for law enforcement, I’m just not for surveillance when there’s not probable cause that a crime’s been committed. So, most of the time, you get a warrant, but if someone’s actively running around with a gun, you don’t need a warrant. That’s the way the system works.

That sounds reasonable. But it’s not what he was saying seven weeks ago, when he held up the nomination of CIA Director John Brennan because Attorney General Eric Holder would not foreswear the possibility that there was any circumstance under which the government would use a drone against an American in the United States.

Subsequent to his appearance on Cavuto, Paul’s office issued a statement that claimed that there had been no flip-flop. As Politico reports:

In his statement Tuesday, Paul clarified his remarks, saying that drones should only be “considered in extraordinary, lethal situations.”

“Armed drones should not be used in normal crime situations. They only may only be considered in extraordinary, lethal situations where there is an ongoing, imminent threat. I described that scenario previously during my Senate filibuster. Additionally, surveillance drones should only be used with warrants and specific targets,” Paul said in the statement.

Paul may claim, and his legion of followers who think he can do or say no wrong will agree, that this does not contradict his filibuster stand. But it does.

The whole point of the filibuster, which he repeated many times on the floor of the Senate during the course of his memorable performance, was that though he didn’t believe the Obama administration would use its power to suppress dissent or kill innocent Americans, some future government might do so. That’s why he took the position that the use of drone attacks here was simply off the table as unconstitutional–no matter what the circumstances.

Though I am no fan of Eric Holder, it was precisely the possibility of an “ongoing, lethal situation” that caused him to be reluctant to say that drones could never be used against a U.S. citizen at home. Paul tried to distort that position into one that posed the possibility that a future U.S. government might use a drone to knock off its political opponents or a Jane Fonda-style dissident, but that was an absurd interpretation of an entirely reasonable unwillingness to rule out the use of lethal force against a dangerous terrorist or criminal.

Paul may pretend there is no parallel between what he endorsed on Cavuto and the use of government force that he declared in the Senate to be a threat to our liberties, but it is a distinction without a difference. Lulled by a desire to show how tough he was on terrorists and criminals to say something about Boston, Paul committed a gaffe that illustrated the inconsistency of his position.

This kerfuffle won’t necessarily impact his run for the presidency in 2016, but it does illustrate that his drone obsession had more to do with his foreign policy views than a defense of the rule of law. The idea of using a theoretical drone attack on Americans in the U.S. as the point of the filibuster was a brilliant tactical decision since it allowed him to take the moral high ground that even attracted the support of some liberals. But Paul’s willingness to admit that there are scenarios where government can or even must use this power demonstrates that his oratory was all for show.

Rand Paul’s real problem with drones isn’t about their use in legitimate law enforcement activities at home but about their employment overseas against al-Qaeda terrorists. In his neo-isolationist view, the “perpetual war” against Islamists isn’t a good idea, and he wants it shut down even if the other side isn’t necessarily willing to call a cease-fire. There is good reason to believe that such views are becoming more popular in our war-weary nation, even with some Republicans. But his drone flip-flop yesterday makes it clear that his attempt to link that critique with possible abuses of civil liberties at home is more the product of science fiction or conspiracy theories than practical politics.

If Paul wants to talk about drones in the future, he should limit his comments to his views about the conflict with Islamist terrorists, which unfortunately opened up a new front in Boston last week. But after his appearance on Cavuto, Americans should have no patience with any further attempts on his part to claim their use at home is a matter of any real dispute.

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Rand Paul’s Moment of Glory

After nearly 13 hours of the first real filibuster in many years, Rand Paul yielded the floor of the U.S. Senate last night shortly before 1 a.m. to tumultuous applause. I don’t share the Kentucky senator’s concerns about the “perpetual war” that al-Qaeda is waging against the West or the use of drones in that conflict. Nor do I believe that the rule of law is at risk in the unwillingness of the attorney general to rule out a hypothetical instance when it might be prudent to use a drone against a U.S. citizen on American soil–though it is difficult to imagine a scenario where that might be legal or necessary. Though I’m deeply sympathetic to the worries that he and other Republicans have about the unchecked expansion of government power, I think the obligation of the executive branch to defend the homeland means it must be granted far greater latitude than Paul is comfortable with.

But along with millions of others who followed the filibuster throughout the day and into the night, I had to admire Paul’s determination as well as the principled manner with which he conducted himself. During his long moment on our national stage, he set an example for other politicians and taught us again that there is still space in our public square for the sort of high-minded approach to public policy that we once associated with the Senate. It was no surprise that throughout the day many other Republicans, and even Democrat Ron Wyden, joined Paul on the floor giving his voice a rest (even if he could not sit down) and allowing them to share a bit of his glory. Paul probably will not succeed in getting the administration to budge on the issue of drones or stop the confirmation of John Brennan as director of the C.I.A., whose nomination Paul was filibustering. But over the course of those 13 hours he made it clear that he is no longer just a libertarian outlier with a fringe following like his extremist father. Whether you like him or not, there’s no escaping the conclusion that he is a Republican star of the first magnitude who will be a first-tier contender for the Republican presidential nomination in 2016.

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After nearly 13 hours of the first real filibuster in many years, Rand Paul yielded the floor of the U.S. Senate last night shortly before 1 a.m. to tumultuous applause. I don’t share the Kentucky senator’s concerns about the “perpetual war” that al-Qaeda is waging against the West or the use of drones in that conflict. Nor do I believe that the rule of law is at risk in the unwillingness of the attorney general to rule out a hypothetical instance when it might be prudent to use a drone against a U.S. citizen on American soil–though it is difficult to imagine a scenario where that might be legal or necessary. Though I’m deeply sympathetic to the worries that he and other Republicans have about the unchecked expansion of government power, I think the obligation of the executive branch to defend the homeland means it must be granted far greater latitude than Paul is comfortable with.

But along with millions of others who followed the filibuster throughout the day and into the night, I had to admire Paul’s determination as well as the principled manner with which he conducted himself. During his long moment on our national stage, he set an example for other politicians and taught us again that there is still space in our public square for the sort of high-minded approach to public policy that we once associated with the Senate. It was no surprise that throughout the day many other Republicans, and even Democrat Ron Wyden, joined Paul on the floor giving his voice a rest (even if he could not sit down) and allowing them to share a bit of his glory. Paul probably will not succeed in getting the administration to budge on the issue of drones or stop the confirmation of John Brennan as director of the C.I.A., whose nomination Paul was filibustering. But over the course of those 13 hours he made it clear that he is no longer just a libertarian outlier with a fringe following like his extremist father. Whether you like him or not, there’s no escaping the conclusion that he is a Republican star of the first magnitude who will be a first-tier contender for the Republican presidential nomination in 2016.

Paul deserves enormous credit for having the courage to pull off such a stunt in an era where real filibusters of the “Mr. Smith Goes to Washington” style are anachronisms. It took audacity to seize the floor and hold it, albeit with some help from a few friends, and to make his point about drones and the Constitution the focus of the Capitol’s attention. Though his real goal was not so much to derail Brennan’s nomination as to use it as pretext to highlight this issue, Paul was right in the sense that it was entirely appropriate for the Senate to avoid a rush to confirmation of a candidate whose views on any number of security issues are questionable. Watching Paul’s stand with admiration, I could only think how much I wished his colleagues had possessed the guts to do the same thing when Chuck Hagel’s nomination as secretary of defense was up for debate. Hagel, whose qualifications and out-of-the-mainstream views made him far less suitable for high office than Brennan, truly should have been filibustered and it’s a shame that no senator had the intestinal fortitude to do it then.

The point here is that no one who witnessed Rand Paul’s performance will soon forget the articulate and intelligent manner with which he conducted his filibuster (there was no reading of the U.S. Constitution as in “Mr. Smith,” even if Paul’s ally Ted Cruz did quote inspiring passages from Shakespeare’s “Henry V” and recited William Barrett Travis’s last letter from the Alamo). In a sea of congressional mediocrity he stood out as someone who might have fit in nicely with the legendary giants of the Senate of an earlier era. Even those of us who have grave concerns with his approach to foreign policy and think his point about drone attacks may needlessly feed paranoia about the potential for constitutional abuses had to admire him yesterday. After this, no one should underestimate his chances of leading the Republican Party in the future.

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Paul’s Real Beef Isn’t Domestic Drones

As of this writing, Senator Rand Paul is still on his feet filibustering the nomination of John Brennan to be director of the CIA. But as he eventually made clear, his goal is not so much to actually stop Brennan, as it is to make a meal of the comments made this morning by Attorney General Eric Holder when he was pressed about U.S. policies on drone strikes on terrorists during an appearance before the Senate Judiciary Committee. When asked whether the government considered it had the right to use an armed drone on an American citizen within the borders of the United States, Holder didn’t give the senators a straight answer. They were entitled to such an answer, as well as to the documents they requested. But those who are now saying that the dustup over using drones in the United States is the sole point of Paul’s filibuster hasn’t been listening closely to him as he held the Senate floor.

Paul and other members of the Senate (including several Republicans and Democrat Ron Wyden) who assisted his filibuster by asking questions to give him brief breaks have a point when it comes to the possible use of drones on U.S. citizens in America. It is difficult to imagine the circumstances when using the same tactics being used on al-Qaeda operatives in the Middle East here at home would be justified. As I wrote earlier, invoking Adolf Hitler and George Orwell’s “Big Brother” in a discussion of current counter-terrorism strategies is inflammatory and misleading. But there is little doubt that operations in the homeland must be conducted differently, starting with the fact that the CIA is not empowered to act in the United States.

Yet even if we concede that, as we should, Paul’s real beef is something else. The attempt to shift the discussion about drones to the fanciful suggestion that the Justice Department might target Tea Party members is a red herring. Paul’s core objection to the drone program remains what he calls the “perpetual war” against Islamist terrorists.

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As of this writing, Senator Rand Paul is still on his feet filibustering the nomination of John Brennan to be director of the CIA. But as he eventually made clear, his goal is not so much to actually stop Brennan, as it is to make a meal of the comments made this morning by Attorney General Eric Holder when he was pressed about U.S. policies on drone strikes on terrorists during an appearance before the Senate Judiciary Committee. When asked whether the government considered it had the right to use an armed drone on an American citizen within the borders of the United States, Holder didn’t give the senators a straight answer. They were entitled to such an answer, as well as to the documents they requested. But those who are now saying that the dustup over using drones in the United States is the sole point of Paul’s filibuster hasn’t been listening closely to him as he held the Senate floor.

Paul and other members of the Senate (including several Republicans and Democrat Ron Wyden) who assisted his filibuster by asking questions to give him brief breaks have a point when it comes to the possible use of drones on U.S. citizens in America. It is difficult to imagine the circumstances when using the same tactics being used on al-Qaeda operatives in the Middle East here at home would be justified. As I wrote earlier, invoking Adolf Hitler and George Orwell’s “Big Brother” in a discussion of current counter-terrorism strategies is inflammatory and misleading. But there is little doubt that operations in the homeland must be conducted differently, starting with the fact that the CIA is not empowered to act in the United States.

Yet even if we concede that, as we should, Paul’s real beef is something else. The attempt to shift the discussion about drones to the fanciful suggestion that the Justice Department might target Tea Party members is a red herring. Paul’s core objection to the drone program remains what he calls the “perpetual war” against Islamist terrorists.

Most Americans understand that limiting American attacks on terrorists to those actively in the field shooting at American soldiers in Afghanistan or those caught in the act of carrying out an attack on other targets anywhere else is not sensible. Al-Qaeda operatives must be hunted down and, if possible, killed wherever they are, be it in their hideouts, while driving a car or sitting in a public venue. Most also have no problem with such tactics being applied to U.S. citizens who have joined al-Qaeda and are actively taking part in a war on America.

But Paul does seem to oppose the drone strikes. Indeed, anyone who heard all or most of his several hours of talk on the subject heard a great deal that shows he thinks the “perpetual war” against the Islamists is the real problem.

The unfortunate fact is that Americans will have to continue fighting al-Qaeda. This is not because our leaders lust for war or are enraptured with drone technology, but because our enemies believe they are engaged in war that will go on for generations until we succumb. Winning that struggle will require patience and endurance as well as the will to seek out these enemies wherever they may be plotting. Targeted killings of these terrorists are necessary and effective. But Paul’s core critique of the administration is not about a theoretical drone attack in the United States but about this very tactic.

Those who worry about Barack Obama’s fast and loose approach to the Constitution do well to keep close tabs on what the government is up to. But the president’s drone use against al-Qaeda is both constitutional and necessary. Conflating this policy with a plan to kill American dissidents or non-combatants sleeping in their beds here is merely a tactic aimed at transforming the debate about drones in a way that will make the curtailment of foreign strikes possible.

We can all take pride in the willingness of members of the U.S. Senate to stand up for the Bill of Rights and against the unchecked expansion of government power. But today’s filibuster is rooted in Paul’s unhappiness with American counter-terrorism tactics abroad, not those that have never been used at home.

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GOP Must Hang Tough on Hagel

Only days ago, it looked like Chuck Hagel was sailing to a quick confirmation as the nation’s new Secretary of Defense by the end of the week. Despite a shockingly poor performance at his Senate hearing, Senate Democrats closed ranks around him. With a couple of Republican supporters and most of the GOP caucus — especially the influential Senator John McCain — declaring they would not support a filibuster of his nomination, Hagel seemed certain of victory. But Hagel’s failure to produce information about income from speeches he had given and the White House’s continuing stonewall of Republican efforts to find about more about the Benghazi disaster have combined to stymie administration efforts to confirm him before Congress breaks for the President’s Day holiday.

Senior Democratic aides told Politico today that Senator Harry Reid doesn’t have the 60 votes he needs to stop a Republican filibuster when the Senate votes tomorrow on whether Hagel’s nomination can receive an up or down vote. That places him on hold at a crucial moment. Some Republicans are backing the roadblock to a vote only as leverage to get the administration to surrender material about the president’s involvement in the Benghazi decision-making process. But the delay may allow more damaging information to come to light about Hagel that could fundamentally alter the dynamic of the debate about his suitability for high office.

As our former colleague Alana Goodman reports at the Washington Free Beacon, a contemporaneous account of a 2007 speech given by Hagel at Rutgers University claimed the U.S. State Department had become an “adjunct to the Israeli Foreign Minister’s Office. These words were recorded in a blog written at that time by Hagel supporter George Ajjan who confirmed the veracity of the post to Goodman.

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Only days ago, it looked like Chuck Hagel was sailing to a quick confirmation as the nation’s new Secretary of Defense by the end of the week. Despite a shockingly poor performance at his Senate hearing, Senate Democrats closed ranks around him. With a couple of Republican supporters and most of the GOP caucus — especially the influential Senator John McCain — declaring they would not support a filibuster of his nomination, Hagel seemed certain of victory. But Hagel’s failure to produce information about income from speeches he had given and the White House’s continuing stonewall of Republican efforts to find about more about the Benghazi disaster have combined to stymie administration efforts to confirm him before Congress breaks for the President’s Day holiday.

Senior Democratic aides told Politico today that Senator Harry Reid doesn’t have the 60 votes he needs to stop a Republican filibuster when the Senate votes tomorrow on whether Hagel’s nomination can receive an up or down vote. That places him on hold at a crucial moment. Some Republicans are backing the roadblock to a vote only as leverage to get the administration to surrender material about the president’s involvement in the Benghazi decision-making process. But the delay may allow more damaging information to come to light about Hagel that could fundamentally alter the dynamic of the debate about his suitability for high office.

As our former colleague Alana Goodman reports at the Washington Free Beacon, a contemporaneous account of a 2007 speech given by Hagel at Rutgers University claimed the U.S. State Department had become an “adjunct to the Israeli Foreign Minister’s Office. These words were recorded in a blog written at that time by Hagel supporter George Ajjan who confirmed the veracity of the post to Goodman.

This statement is consistent with Hagel’s 2006 claim that the “Jewish lobby” was intimidating Congress and shows a mindset of hostility to the U.S.-Israel alliance. Ajjan’s post about Hagel’s speech makes interesting reading today as it demonstrates the former senator’s views opposing isolation of Iran, a key point in the context of President Obama’s declared policies about Tehran.

Senators should demand that Hagel explain this remark as well as provide the information they’ve asked for about his speeches to various Arab groups to whom he may have made similar remarks about Jews and Israel. So, too, should the Jewish organizations that have been silent about Hagel’s nomination out of fear of offending President Obama.

More to the point, pro-Israel Democrats like Chuck Schumer should use these latest revelations as justification for reversing their lukewarm endorsement of Hagel. All it will take is one wavering Democrat to abandon the Nebraskan for his nomination to unravel. And the longer the process drags on the more likely it will be that this might happen. The accumulation of damaging information about Hagel combined with the incompetence he demonstrated at his confirmation hearing, should lead Republicans to hang tough on his nomination.

The GOP should ignore the huffing and puffing about the unprecedented nature of their attempts to stop the Hagel nomination. It may be that a filibuster of a Cabinet appointee is a rare event and should not be undertaken lightly or at the expense of a qualified candidate. But Chuck Hagel is not such a person.

As he demonstrated at his hearing, Hagel is not prepared to deal with the issues facing the Pentagon or the nation and doesn’t even consider this important post to be one in which policy is decided. His offensive remarks about American Jews and Israel are in of themselves a reason to ask the president to drop him and bring forward another, better person to lead the Pentagon. But the effect of his nomination on Iran’s opinion of the administration is an even better reason to drop him. They clearly regard Hagel’s appointment as a sign that the United States isn’t serious about stopping their nuclear plans and would never use force even after diplomacy had failed.

If there was ever a nomination that deserved to be filibustered, it is Hagel’s. The Senate Republican caucus has good reason to hold up any vote on him. The latest revelations about his views should also encourage Democrats to dump him.

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Is a Hagel Filibuster Still Possible?

Just when it seemed as if Chuck Hagel’s confirmation as secretary of defense seemed almost certain, a crucial Senate Republican may be changing his mind about supporting a filibuster of the embattled nominee. As Politico reports, Senator John McCain is now leaving open the possibility of joining a filibuster of Hagel if the White House continues to refuse to release information about the president’s “actions and orders” on the night of the 9/11 terrorist attack in Benghazi that resulted in the deaths of four Americans.

By joining his friend and colleague Lindsey Graham in demanding more data about Benghazi as the price for removing a hold on Hagel, McCain is moving away from his previous stand that a filibuster of a nominee for a senior Cabinet post is inappropriate. With two Republicans saying they would vote to confirm Hagel and several others agreeing with McCain that an up or down vote should not be denied their former colleague, it had looked as if the president’s choice was certain to be confirmed this week. But by adding his weight to the request for more about Benghazi, McCain may have, at least temporarily, changed the dynamic of the Hagel battle. Since the administration has resisted Senate demands to learn more about the president’s involvement in the Libya fiasco, this could mean that Hagel will have to wait until at least after the President’s Day holiday to get his vote.

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Just when it seemed as if Chuck Hagel’s confirmation as secretary of defense seemed almost certain, a crucial Senate Republican may be changing his mind about supporting a filibuster of the embattled nominee. As Politico reports, Senator John McCain is now leaving open the possibility of joining a filibuster of Hagel if the White House continues to refuse to release information about the president’s “actions and orders” on the night of the 9/11 terrorist attack in Benghazi that resulted in the deaths of four Americans.

By joining his friend and colleague Lindsey Graham in demanding more data about Benghazi as the price for removing a hold on Hagel, McCain is moving away from his previous stand that a filibuster of a nominee for a senior Cabinet post is inappropriate. With two Republicans saying they would vote to confirm Hagel and several others agreeing with McCain that an up or down vote should not be denied their former colleague, it had looked as if the president’s choice was certain to be confirmed this week. But by adding his weight to the request for more about Benghazi, McCain may have, at least temporarily, changed the dynamic of the Hagel battle. Since the administration has resisted Senate demands to learn more about the president’s involvement in the Libya fiasco, this could mean that Hagel will have to wait until at least after the President’s Day holiday to get his vote.

On the surface, Benghazi has little if anything to do with Hagel’s questionable fitness for high office. Many in the Senate have justified qualms about Hagel’s views about Israel, Iran, terrorism and defense cuts but McCain has taken the position that escalating the use of the filibuster to encompass cabinet nominations is a step towards all out partisan warfare that he isn’t willing to take. But McCain seems to agree with Graham and other Republicans that it is vital that the truth about Benghazi isn’t swept down the memory hole by the administration and their complacent media cheerleaders. If linking Hagel to that affair is the only way to drag more information out of the White House, then McCain may have concluded that it is the right thing to do.

It may be that a delay won’t convince Democrats to abandon their party line on Hagel. The strict partisan divide in the Senate Defense committee confirmation vote illustrated the willingness of pro-Israel Democrats to swallow even as unsatisfactory and unprepared a candidate as Hagel if the president demanded it of them. But if McCain feels that the Senate is being stiffed by the White House on Benghazi that may convince him to take actions on Hagel that he might otherwise not think about. With McCain joining a filibuster, finding 40 votes to stop the nomination would still be difficult but not as impossible as it seems today.

As I wrote yesterday, such a filibuster entails risks to the Republicans. But his dismal performance at his confirmation hearing and the transparent manner with which he sought to disavow previous controversial positions undermines the rationale that the president deserves his choice at the Pentagon. Hagel may still be on track for confirmation. But if the White House isn’t forthcoming with the information Graham and McCain want, it’s going to be even more difficult than he might have thought.

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Hagel and the Limits of Civility

After months of political debate the Senate Armed Services Committee may bring the Chuck Hagel saga closer to a resolution today. Yesterday, committee chair Carl Levin said he would schedule a vote for this afternoon but the ranking Republican member seems prepared to fight the former senator’s nomination as secretary of defense to the bitter end. With Democrats closing ranks behind the president’s choice to head the Pentagon, there doesn’t seem much chance that Hagel can be stopped in the committee. And with some Republicans, including John McCain, vowing not to support a filibuster of the nomination, it seems all but certain that Hagel will be confirmed perhaps as early as this week.

McCain made no secret of his antipathy for his former friend during a stormy confirmation hearing in which Hagel stumbled badly giving the impression that he was both unprepared and unqualified for the position. But McCain’s opposition to a GOP walkout from a committee vote as well as the filibuster may prevent opponents from using procedural tactics to stop the nomination going forward. The Arizonan feels that allowing the argument about Hagel to blow up relationships between the two parties in the committee or an attempt to stop the confirmation via filibuster —something that has rarely happened to any Cabinet nominee — would be unjustified. His concern for keeping things civil in the Senate deserves respect but given the stakes involved in this nomination, those Republicans who will seek to use every trick in the book to stop Hagel are justified.

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After months of political debate the Senate Armed Services Committee may bring the Chuck Hagel saga closer to a resolution today. Yesterday, committee chair Carl Levin said he would schedule a vote for this afternoon but the ranking Republican member seems prepared to fight the former senator’s nomination as secretary of defense to the bitter end. With Democrats closing ranks behind the president’s choice to head the Pentagon, there doesn’t seem much chance that Hagel can be stopped in the committee. And with some Republicans, including John McCain, vowing not to support a filibuster of the nomination, it seems all but certain that Hagel will be confirmed perhaps as early as this week.

McCain made no secret of his antipathy for his former friend during a stormy confirmation hearing in which Hagel stumbled badly giving the impression that he was both unprepared and unqualified for the position. But McCain’s opposition to a GOP walkout from a committee vote as well as the filibuster may prevent opponents from using procedural tactics to stop the nomination going forward. The Arizonan feels that allowing the argument about Hagel to blow up relationships between the two parties in the committee or an attempt to stop the confirmation via filibuster —something that has rarely happened to any Cabinet nominee — would be unjustified. His concern for keeping things civil in the Senate deserves respect but given the stakes involved in this nomination, those Republicans who will seek to use every trick in the book to stop Hagel are justified.

Senator McCain is right to note that any attempt to raise the bar to Cabinet nominations to the 60 votes needed to stop a filibuster rather than a simple majority may someday boomerang on the Republicans. Though Democrats are currently speaking as if their hold on the White House and the Senate is permanent that is nonsense and a GOP president and Senate majority will likely fume over a future Democratic attempt to thwart a nomination they wish to push through via a filibuster. But the escalation of filibuster tactics that the Democrats pioneered a decade ago against George W. Bush’s judicial nominees is a genie that can’t be put back in the bottle except by a rules change that neither party really wants.

It should also be pointed out that the bygone era of bipartisan civility in Congress that McCain understandably yearns to bring back is only possible when both parties put forward plausible nominees. The impulse to defer to the president’s choices for senior posts makes sense so long as the people they are being asked to rubber stamp are not outliers on policy or as transparently incompetent as Hagel.

Levin and other Democrats have taken umbrage at attempts by Jim Inhofe, the committee’s ranking member and other Republicans to make Hagel jump through hoops that other cabinet nominees may not have been asked to do. But the spectacle of a would-be secretary of defense speaking of his post as not being one that sets policy or being unable to define or articulate the administration’s stand on containing a nuclear Iran undermines any notion that good manners requires Republicans to pull their punches on Hagel.

The problem with Hagel is not just that his past opposition to getting tough on Iran as well as his boasts about standing up to the “Jewish lobby” should have made his nomination unthinkable. It is that by putting him in charge of the Pentagon, President Obama is sending an unfortunate signal to Iran that his threats about using force are merely bluffs intended for domestic consumption.

It is possible that Hagel’s presence at the Pentagon does not mean that the president will back down on Iran and that he was picked solely because the White House saw him as someone who could best implement drastic cuts in defense spending. Given Hagel’s bumbling in front of the committee it’s hard to imagine how he will manage such a vast department let alone pull off an efficient downsizing of the armed forces. But whether the president intended it or not, the world has interpreted Hagel’s elevation in the context of the looming conflict with Iran. In doing so, Obama has encouraged Iranian intransigence and heightened the chances for conflict.

In such a context, any Republican effort to derail his confirmation that falls within the boundary of existing rules must be seen as both justified and necessary. It may be that the willingness of pro-Israel Democrats such as Chuck Schumer to accept the nomination of one of the Jewish state’s antagonists means that nothing will prevent Hagel from taking office. But McCain’s qualms notwithstanding, Inhofe and the GOP caucus are right to pull out the stops to stop him.

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