Month: July 2022

This is NOT a Sunday story.  It’s actually more of a Sunday “lesson”, in the US Government, and specifically, that odd rule called the “filibuster”.

School House Rock

We Americans think of our government in basic terms.  One Person should equal one vote, and everyone’s vote should be equal to everyone else’s.  We have a representative democracy, a government where the people elect legislators who then vote on proposed laws, called bills.  The majority vote of those legislators “wins”, and they become law.  If you’re old enough to remember “School House Rock”, you know how it all goes.

But we also know that the simple basics aren’t reality.  One person, one vote depends on which election it is, and on whether everyone gets the opportunity to vote.  Legislators do vote on bills, but it’s never as simple as just voting.  There are all sorts of impediments:  rules to get the bill to a vote, committees that determine what is in the bill, even committees to determine what the rules of the debate will be.

And that’s just one House of the US Government.

The Constitution

The Constitution doesn’t say too much about passing bills into law.  While it says that the bill must “pass”, it doesn’t define how that happens. Presumably, passing means a majority vote. And for certain actions,  such as overriding Presidential vetoes, and ratifying treaties, one or both Houses are required to have a two-thirds majority. 

We do know that the Founding Fathers intended different roles for the two Houses of Congress.  The House of Representatives is elected directly by the people, every two years.  They were intended to be “close” to the people, and “hot” with popular ideas. The House, and therefore the people, were also in charge of the finances. All appropriations bills must start there.

The Senate originally was chosen by the State Legislatures, two for each state.  Senate terms were six years long.  Supposedly Washington described the Senate as “…the saucer to cool” the hot ideas of the House.  And the Senate was given power to control foreign affairs and Presidential appointments.

Things have changed since 1787.  The House has become incredibly partisan, driven by gerrymandering that guarantees one party or the other the vast majority of Congressional seats. All 435 seats are up for election every two years, but in reality, only thirty-five or so will be true contests.  For the rest, the contest is in the party primary before the general election, if there’s a contest  at all.

Meanwhile the Senate has become more competitive.  The Seventeenth Amendment mandated Senators are directly voted by the people.  And while states might be partisan one way or another, they aren’t manipulated through gerrymandering to favor a side. So today the Senate tends to be the home of the “hot ideas”, and the House is more controlled by institutionalists. 

Traditional Filibuster

The infamous impediment to passing bills in the Senate is the filibuster.  It’s not in the Constitution, nor in the House of Representatives. It wasn’t even in the original parliamentary rules written for the Senate by then Vice President Thomas Jefferson.  The filibuster arrived after Jefferson became President, and his Vice President, Aaron Burr, was presiding over the Senate.

Jefferson’s rules call for a debate before the final passage vote.  The minority could delay by keeping the debate going.  The winning side then has to have a vote to end the debate, called a “cloture motion”.   (For those familiar with Robert’s Rules of Order, based from Jefferson’s Rules, this is ‘calling the previous question’, and requires a two-thirds vote to pass, end debate, and begin the vote).

Like Robert’s Rules, the Senate originally required  a two-thirds vote to agree to cloture, ending debate and bringing the final vote.  However, the Senate also allowed for a vote to begin when debate ends simply because Senators just stop talking.  So to prevent a vote, Senators must “hold the floor” and continue the debate.  Under Senate rules even a single Senator can hold the floor, as long as she or he remains standing, talking, and doesn’t leave the chamber.  No other Senate business can go on while the “filibusterers” hold the floor.  

A single Senator (Mr. Smith goes to Washington) or a few Senators can hold the floor.  As long as the “other side” can’t muster two-thirds of the Senators to end debate, they can go on as long as physically possible.  The record for a single Senator filibustering:  Strom Thurmond of South Carolina held the floor singly for twenty-four hours and eighteen minutes to stop the 1957 Civil Rights Act. 

Today’s Filibuster

The filibuster changed in the 1970’s, by an agreement made between the two political parties.  First, they reduced the cloture number to sixty Senators (three-fifths) instead of sixty-seven (two-thirds).  Second, before debate on a bill even begins, there is a cloture vote.  If the majority side can’t muster sixty votes, then the bill is “considered” filibustered, and the debate doesn’t even begin.  In exchange for making it “easier” to end the filibuster, the actual act of filibustering, holding the Senate floor, is no longer necessary.  Either the majority has sixty votes, or a bill is done.

So, if we are a democracy, where the majority is supposed to be able to “rule”, why allow thirty-four (originally) or forty (now) to control what bills pass?  Why give the minority control of legislation?

One of the strongest current supporters of the filibuster today is Senator Joe Manchin from West Virginia.  He reasons that in our incredibly partisan politics, the existence of the filibuster requires Senators to work together to get legislation.  With only a couple of exemptions from the rule, bills passed in the Senate must be bipartisan, with at least ten votes from the minority party (in our current 50-50 Senate).  So every bill must be negotiated by the majority party with the minority party.

Otherwise, Manchin reasons, the Senatee becomes a tit-for-tat body.  When the majority changes, they will simply undo everything the former majority achieved.  Instead of advancing the national interest, the main focus will be to “take back” what the other side did when they had the majority.  Nothing new will get done.

And inevitably, that “other” party will someday get control of the Senate.  And when they do, the new minority party will want to have the control that the filibuster offers.

Filibuster’s Future

We got a hint of Manchin’s future with the Affordable Care Act. It passed with Democrats alone (a sixty vote majority) in 2010.  With the election of a Republican President in 2016 and Republican control of the House and Senate; they attempted to repeal the ACA seventy times.  The Senate came within one vote of achieving that goal, with Arizona’s John McCain giving his famous “thumbs down” in the middle of the night to save the program.

Senator Manchin’s view does depend on one thing – that the minority party wants to get “something” done. If a determined minority just wants to obstruct all legislation, then his bipartisan negotiations never happen.

Senator Warnock of Georgia wants to end the filibuster. He argues that its main use has been to delay civil rights legislation.  The filibuster has been a tool of segregationists and those who wish to maintain unequal privileges in the United States since the Civil War.  Even today, in that long tradition, many of the bills “filibustered” by the Republicans have been ones that would increase voting and economic opportunities for minorities.

Speaker Pelosi argues that with the Insurrection of January 6^th, and the “clear and present danger” that still threatens our democracy, the Senate must act.  The “gentlemen’s agreement” of the filibuster now stands to protect those that want to alter our form of government, whether in the Senate, on the Supreme Court, in the State Houses or at Mara Lago. They are the threat to our democracy.

The Votes

The bottom line:  the filibuster isn’t in the Constitution, and it isn’t even a “law”.  It’s an agreement in the Senate, a “rule” voted on every two years.  They can repeal it tomorrow.  And that “repeal” wouldn’t require sixty votes; Senate procedural rules pass with a simple majority vote.  If Democrats, including Manchin and Arizona’s Senator Sinema, decided to restrict or remove the filibuster, they could.  And if Republicans get control of the Senate in this November’s election, they can too.

President Joe Biden is a “Man of the Senate”. He served thirty-six years as a Senator and eight more as the Vice President presiding over the body.  He is an institutionalist, and has always supported the filibuster in the past. But this week even he suggested that the rule must be modified to pass laws codifying the principles of Roe v Wade and passing the voting rights acts.

That’s a big step for democracy, and America.  But it’s not possible without fifty votes in the Senate.  And until Manchin and Sinema change their minds, or more Democrats are elected to the Senate, as the line from the musical Hamilton goes, “You ain’t got the votes”.

Our democracy is at risk.  Many are looking to the next Presidential election.  But the 2022 election is just as important.  Who controls the House and more importantly, the Senate, may well decide the fate of our Constitutional “experiment” in government.

Public School Coach

I was a public high school coach for forty years.  Like it or not, I knew the kind of influence I had over my teams.  If I got mad, they got scared. If I “lost my head”, they certainly would lose theirs.  My teams looked to me to understand how to handle both the good and the bad.   And that wasn’t always about winning and losing.  Teammates and coaches died, best friends let us down, our sports were cut.  My job was to help “my kids” deal with the loss, the sadness,  and the disappointment, as well as the joy.  Part of that was to learn to deal with it all myself.

Don’t get me wrong, winning and losing were important, and emotional.  The “highs” of winning were “tight”, all the negatives dropped away from that moment.  And the “lows” of losing were often tempered by the fact we shared them together.  But the “real” life and death situations were soul changing.  I’ve never felt so close to a group of athletes and coaches as I did with a candle in my hand on our track, saying goodbye to a coach, or as we returned from our teamates’ funerals to compete in a meet.

When I wanted to punch the locker room door, I did it when the kids weren’t around.  And when I wanted to drink a toast (or two) to my lost coach, I didn’t do it with my team.  There were things that were appropriate to share with those impressionable young athletes, and there were things that were not.  They were personal.

Kennedy v Bremerton School District

The Christian conservatives on the  United States Supreme Court gave a “wink and a nod” to a public high school coach from the state of Washington this week.  God bless that man, Coach Kennedy. He’s a devout Christian, so devout, that after his team’s football game he felt called to go out onto the field and kneel in prayer.  And he did it as the kids were still on the field, and the crowds were still in the stands.  He believed that he was exercising his First Amendment right to practice his religion in the way he found appropriate, just as professional player Tim Tebow knelt in the end zone after scoring a touchdown.

But there’s a difference between Tebow and Kennedy.  Tim Tebow was a private citizen, employed as a quarterback in the privately owned NFL.  The coach is a public employee, hired to coach a public school football team.  

Until last week, the Supreme Court had a firm standard, set in Engle v Vitale in 1962.  I remember when that case was decided.  Until then, Mrs. Meyers led us Clifton Elementary School second graders in the Lord’s Prayer each morning, right before we stood up and Pledged Allegiance to the flag.  I’m not sure any of us really understood what “pledging allegiance” meant, nor asking for our “trespasses” to be forgiven.  But then, one day, we no longer were saying the Lord’s Prayer, nor were we given an hour of the school day to walk down to the nearby Episcopal Church for Bible study lessons.

Teaching Religion

Mrs. Meyer couldn’t “instruct or lead” us in religious education.  If we wanted that, we should go to Annunciation School, the Catholic elementary just down the road.  That was because Mrs. Meyers was employed by the Cincinnati Public Schools, and the city government didn’t have a place in determining or instructing us in religion.  They could teach us about religion, but they couldn’t help us to practice a religion.

Years later as a social studies teacher I was very aware of that distinction when I taught “world religions”.  We went through all of the tenets of Judaism, Christianity and Islam; Hinduism, Buddhism, Confucianism, and Shintoism.  We talked about what “they” believed, even to the Jewish and Christian and Buddhist kids in the classroom who were the “they”.   One Buddhist parent thanked me for explaining it to his kid.  I guess I got it right, or at least, I was on the “middle path”.

But I did not analyze “right” or “wrong”, what was “fact” and what was “myth”.  I simply stated what the tenets of the faiths were.

The Problem

So what’s so wrong with Coach Kennedy, following his calling out onto the game field, and giving thanks to his Lord for a well-played game?  Nothing – unless his players, his “kids”, interpret that as part of their “team” activities.  Football is a tough sport.  Unlike my beloved Track and Field, where performance is objectively measured in seconds and inches, getting to start in Football is all about the coaches.  It’s their subjective decision.  If you’re fifteen and want to get on the field, then you don’t want to “piss off” the coach.

Every kid knows that.  And so does every athlete who grew up in inter-scholastic sports.  That includes high school football team captain John Roberts, and football and basketball player Bret  Kavanaugh.  Even Justice Samuel Alito ran track.

So when your coach goes on the field, by himself, to pray, he doesn’t have to “order” anyone to join him.  His kids want to follow him, want to be a part of what he does.  And even if they aren’t sure about the whole “praying” thing, they want to be “in good” with coach. They want to be with their buddies, and they want to be in the lineup.  Who wants to  “stand out” as the kid who didn’t go?

His Right, Our Dime

The Supreme Court gave a “wink-wink” to Coach Kennedy.  They agreed that he was just expressing his individual right to his religion.  He could have expressed it in his office, or at his car, or in the dark field after the lights were off and the kids were gone.  There were many nights when I walked the track – alone – not to commune with my maker, but to savor the moment, or lower my blood pressure.  But Kennedy didn’t.  Wink-Wink, he was just talking to his God, in private; under the lights,  with his team, other teams, and  fans in the stand.  And they were talking with him.  A coach is a leader.  And Coach Kennedy was leading all of them in a religious action.

And it was all on the government payroll, essentially “sponsored” by the Bremerton School District.  

In Law School, we learned to take an event, and alter “one thing” to see if we could get the same result.  It was called the “what ifs”.  What if Coach Kennedy had rolled out a prayer rug and bowed to the East in Islamic Prayer?  What if, instead of the Lord’s Prayer, the chant was, “Hare Krishna, Hare Krishna, Krishna, Krishna, Hare, Hare”?  Are his actions still, OK?

Wink-Wink.