Opinion

Reihan Salam

What the filibuster’s demise means for the Supreme Court

Reihan Salam
Nov 22, 2013 21:53 UTC

Now that Senate Majority Leader Harry Reid has ended the filibuster for district and appeals court nominees and executive branch appointments, it’s only a matter of time before the filibuster goes away for Supreme Court nominations and legislation as well. Reid’s decision has been a long time coming: One of his predecessors, Republican Bill Frist, came very close to ending the filibuster in 2005.

Even so, at least some observers are troubled by what they see as Reid’s recklessness. Former Senator Olympia Snowe and former Agriculture Secretary Dan Glickman, co-chairs of the Bipartisan Policy Center’s Commission on Political Reform, of which I’m a member, released a statement criticizing the filibuster decision on the grounds that “any alterations of rules or practices should be done judiciously, after careful consideration and with a balanced approach that incorporates views from all sides.”

The problem, however, is that the filibuster has not been used judiciously, by either Democrats or Republicans. Over the past forty years, it has been transformed from a tool designed to encourage deliberation to something else entirely. Josh Chafetz, a professor at Cornell Law School, argues that the filibuster has become an implicit supermajority requirement — one that violates the Constitution. According to Chafetz, the rules governing the legislative process and the appointments process are based on the premise that a determined legislative majority will eventually prevail over the minority, not that the minority has the right to exercise an effective veto. One could argue that there is a meaningful difference between using the filibuster to block judicial nominees and executive branch appointments, and using it to stymie legislation, but it’s not at all clear that such a distinction would hold up in a constitutional challenge.

It’s worth considering how different the last few years might have been in the absence of the filibuster. President Obama’s Affordable Care Act might have included a public option, or opened Medicare to Americans under the age of 65. A number of left-of-center legal scholars, including Goodwin Liu, who currently serves on the California Supreme Court, might now sit on the federal bench. During the first years of the Obama presidency, moderate Democrats in the Senate would have been far less powerful, and liberal Democrats would have been far more so. It is also true, however, that conservative Senate Republicans would have been far more powerful when they were in the majority for most of the Bush years, and a conservative judicial nominee like Miguel Estrada might now be serving on the Supreme Court.

Going forward, Reid’s decision will leave a deep imprint on American politics. Without the filibuster, a future Republican majority in the Senate will have a much easier time repealing the Affordable Care Act. Conservative critics of the ACA, like Keith Hennessey, have called for using the budget reconciliation process to repeal many of its central elements. Yet other elements of the law, including the state exchanges and the new coverage mandates, would be harder to undo, as they might have remained subject to the filibuster. Though ending the filibuster lowers the bar for liberal lawmakers to increase social expenditures, it also lowers the bar for conservative lawmakers to shrink them.

Finding new ways to make work pay

Reihan Salam
Nov 14, 2013 18:32 UTC

One of the scariest notions about America’s sluggish labor market recovery is that it doesn’t represent an aberration, but rather a new reality in which good jobs are few and far between, particularly for those with limited skills. It is certainly possible that the future will be brighter than we think, and that we will soon enter a new economic Golden Age in which people with low education levels will flourish as employers clamor for their services at ever-higher wages. But if this happy outcome does not come to pass, as the current evidence suggests, the United States and other market democracies will have to come up with a Plan B.

A number of interrelated developments, from automation to organizational innovation to off-shoring, appear to have reduced the willingness of employers to pay middle-income wages to less-skilled workers. That is, the problem is not that there is no wage at which employers will take on less-skilled workers. If this were the case, agriculture and hospitality companies wouldn’t be pressing lawmakers for an immigration overhaul that would allow for a large influx of less-skilled workers from abroad.

Rather, the problem we face is that employers are only willing to employ less-skilled workers at very low wages, including wages that the voting public considers unacceptably low. Public support for raising the federal minimum wage, now at $7.25, is overwhelming. A Gallup survey released on Monday finds that 76 percent of voters favor a $9 per hour minimum wage, and one assumes that support for an even higher minimum wage would be almost as robust.

Obama’s apology (of sorts) for his “keep your plan” promise

Reihan Salam
Nov 8, 2013 17:59 UTC

This week, President Barack Obama offered an apology (of sorts) to Americans who believed him when he repeatedly assured the public that anyone who liked their current health insurance plan could keep it under the Affordable Care Act. In an interview with Chuck Todd of NBC News, the president said, “I am sorry that they are finding themselves in this situation based on assurances they got from me.”

Up until now, the president and his allies have insisted that the “keep your plan” promise had been misinterpreted, and that the plans that were being cancelled were “junk plans” that belonged on the scrap heap, a claim that many insurance beneficiaries found objectionable. Keith Hennessey, a veteran of the Bush White House, constructed a flowchart of the “keep your plan” defenses made by the president and his allies, the complexity of which spoke to the president’s political dilemma. One of the architects of the Affordable Care Act, Ezekiel Emanuel, struggled to defend the veracity of the “keep your plan” promise in a recent episode of Fox News Sunday. So the president’s apology will surely come as a relief to those tasked with maintaining that the “keep your plan” promise wasn’t at least slightly misleading.

The president’s apology didn’t prevent him from making other misleading statements during the same interview. Once again, he insisted that the disruption of existing insurance arrangements applied only to people in the individual insurance market, which represents a relatively small share of insurance beneficiaries. But the Affordable Care Act imposes new regulations on employer-sponsored plans, which have the potential to disrupt the insurance arrangements of many more Americans, and the law’s grandfathering provisions are quite narrow. Fortunately for the president, the apology itself will draw enough attention to distract from this looming issue, which could prove far more politically potent than what some are describing, perhaps prematurely, as the slow-motion collapse of the individual market.

Why New Jersey and Virginia matter to the GOP — and its future with black voters

Reihan Salam
Nov 1, 2013 19:27 UTC

Next week’s election will be an important one for the future of the GOP. In New Jersey, Republican Gov. Chris Christie is up for re-election, and by all accounts he is set to defeat his Democratic opponent, state Sen. Barbara Buono, by a wide margin. Christie is widely considered a serious candidate for the Republican presidential nomination in 2016, and his ability to win support among independents and Democrats in his home state will be a central part of his appeal.

But in Virginia, it increasingly looks as though Terry McAuliffe, an entrepreneur and investor best known as a political ally of former President Bill Clinton, will defeat Ken Cuccinelli, a staunch conservative much admired by the Tea Party right. At least some conservative activists saw Cuccinelli, who as Virginia’s attorney general played a leading role in constitutional challenges against the Affordable Care Act and other Obama administration initiatives, as a potential presidential contender. A bruising defeat against McAuliffe will put an end to such talk.

There are many things that separate Christie from Cuccinelli. Having served as governor for the better part of the last four years, Christie is a familiar figure. He began his tenure with a series of polarizing confrontations with New Jersey’s powerful public employee unions, yet he has spent the last year on a more conciliatory note, motivated in part by a desire to help his state recover from the damage wrought by Hurricane Sandy. In a heavily Democratic state, Christie has distanced himself from congressional Republicans, and he has framed himself as a pragmatic reformer who stands above the political fray. This position is particularly valuable in light of parlous state of the GOP brand. The most recent NBC/Wall Street Journal poll finds that the Republican party now has a 22 percent positive rating and a 53 percent negative rating across the country, and it’s a safe bet that the picture is even worse in New Jersey.

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