The filibuster 

How did a word that once meant “piracy” become a valuable tool in the American political system, then a weapon, and now a word that some hold in such low regard that they think it should be eliminated from our political process?  Let us offer a subjective examination.

We turn to William Safire, a reporter then speech-writer for President Nixon (Pat Buchanan gets a lot of credit for the most serious flame-throwing remarks of that administration) and later a columnist for the New York Times whose column “On Language” was always a favorite read for this correspondent.  A year before his death in 2009, the last version of Safire’s Political Dictionary was published by Oxford University Press.  It’s a wonderful resource for any who follow politics and want to understand its lingo.

Back in the 1500s, governments such as Britain and France contracted with private ship owners known as “privateers” to, in effect, wage war on ships flying enemy flags—at the time, Spanish ships.  More often than not, says Safire, these privateers became just plain pirates.  “Privateer” is rooted in a Dutch word, “vrijbuiter,” which translates to “freebooter,” a word equated to “pirate.”   In French, the word became “flibustier.”  In Spanish, it was “filibustero,”  words that were translated into English as “filibuster.”

In the mid-1800s, American filibustering expeditions took place in Central America, private military expeditions that sought to seize control of countries.  One of those taking part in one of most famous, or infamous, such expeditions was James Carson Jamison who was part of William Walker’s filibustering effort and wrote With Walker in Nicaragua. He later served the Confederacy in the Civil War and was the state’s Adjutant General (1885-1889) under Governor John S. Marmaduke, a former Confederate General.

It appears the word was first applied politically was during debate in the U. S. House on January 3, 1853.  Democrats favored organizing an expedition to take Cuba away from Spain.  Whigs were opposed.  One Democrat, Abraham Venable of North Carolina, crossed over to the Whig side, arguing that the United States should not engage in piracy to acquire Cuba.  A Venable opponent, Congressman Albert Brown said, “When I saw my friend standing on the other side of the House, filibustering, as I thought, against the United States…I did not know what to think.”  The word quickly became identified with efforts to block passage of legislation.  It remains so today.

Your observer has observed that tactic being applied numerous times consuming hours of his life that added nothing to his knowledge or entertainment.  Some had memorable moments but most were as interesting as three-day-old dry toast.

Filibusters work best when they are respected as tools that protect the minority and give it valuable weight in shaping public policy. They are their worst in times of agenda-driven super-majorities that see no reason to recognize the validity of minority positions.

Filibusters have been useful in forcing compromise, sometimes broadening the public policy under consideration, sometimes protecting the rights and privileges of those who feel a piece of legislation lessens their standing within society or in the economy, sometimes avoiding mistakes that otherwise would be enacted with the original proposal, sometimes forcing order into a proposal that endangers services beneficial to a broader public while granting a perceived unfair advantage to a particular segment of the people.

The filibuster works best in a partisan body in which the numbers force a recognition that the goals of one side cannot be attained without the cooperation of the other.  While a simple majority might be reached by one side alone, the limits imposed by the clock and the calendar lessen that possibility if the minority side consumes hours and days, particularly as the hours and days of a session dwindle.  The utility of a filibuster increases as time grows short—as it is now in the legislature—because the scenario not only involves the issue at hand but other issues that might never be reached because the time to reach them is being consumed by those holding the floor.

There are ways to end filibusters—a cloture vote in Washington, a previous question motion in Jefferson City that seeks to immediately end debate and immediately go to a vote. In previous years, when the partisan breakdown of the legislature was more balanced than it has been in recent years, the PQ—as it is called—was almost never used because both sides knew that it could be used against them if the majorities switched. Additionally, there was an acknowledgement that today’s enemy has to be tomorrow’s friend if you hope to get your bill passed.  But as the majority-minority margins increase, the need for reciprocity dwindles and in time becomes irrelevant.

As that happens, the minority has a tendency to become more strident, more irritating to the majority—which is more tempted to shut down the minority with a parliamentary motion. Who cares about friendships in such situations?  It also should be noted that the majority is less likely to shut off debate if the filibuster involves members of the majority party.

The minority, however, is not completely disarmed in such situations. A couple of years ago, the minority in the senate reacted when the previous question was called on a bill in the last week of the legislative session and nothing passed the rest of the way.

Many observers in Washington have pronounced the filibuster dead after the confirmation of Judge Gorsuch.  Perhaps it is in a climate in which sixty votes, not just the majority, was required for action on some issues.  But back here in the states, it remains a tool—some say, a protection—in simple majority climates where there are no rules that otherwise limit debates but where unwritten rules about honoring the tradition and the reasons for filibusters usually prevail. Usually.

Has Washington killed the filibuster?  Or has it just turned organized participants there into privateers?

See Spot(s) Run

Your faithful observer is starting to see spots before his eyes.

“Spots” is broadcast-ese for “commercials.”  Political commercials.  Most particularly, Republican candidates for governor.  Three of them were almost cheek-to-jowl in one of the late night shows the other night.

The timing of two of the commercials was—uh—awkward, shall we say?

Only about forty-eight hours after the Orlando incident, Eric Greitens was blowing up something with (what appears to these eyes unfamiliar with weapons) a military-style assault rifle.  His solution to politics-as-usual is to fire about 13 shots in two seconds until something he is shooting at explodes.  Some folks we have talked think it was poor manners to continue running these spots in the immediate wake of the Orlando tragedy.

Catherine Hanaway uses a shotgun to also blast “career politicians” while touting the mom, home, and apple pie virtues and claiming that she “passed” a law expanding gun rights (to be honest, SHE didn’t pass it, the legislature did). And the question arises with her commercial too—whether it was poor taste to brag about expanding gun rights in the wake of Orlando. It might seem odd to some that she criticizes career politicians after a career that began as a manager of Senator Bond’s campaign in northeast Missouri in 1993, election to the Missouri House in ’98, her extensive work recruiting candidates and donors to help Republicans gain control of the House, her term as Speaker, her losing candidacy for Secretary of State in 2004 and her subsequent political appointment as federal prosecutor in eastern Missouri under the George W. Busch administration.

Compared to those two is John Brunner, who so far has advertised nothing more than his promise to create more jobs and an emphasis that he’s so rich he “can’t be bought.” We’ll wait to see if he shows anything indicating he has something else to offer or any specifics about how he can create more jobs in a state where the unemployment rate is just above four percent, a figure that fits several definitions of “full employment.”

We didn’t see a Peter Kinder spot while Greitens, Hanaway, and Brunner were hoping late night viewers would find something significant in guns and generalities.  But he had been on the air earlier attacking the unmitigated evils of the Left, which is nothing new for him.

Perhaps the candidates will tell us in spots to come what they’ll do to solve Missouri’s problems—poor school funding, poor transportation funding, medical care and mental health services, whether they think significantly higher sales taxes are preferable to a graduated income tax, stuff like that requiring more than platitudes, diatribes, and firearms.

The campaigns by Hanaway, Brunner, and Greitens blasting career politicians certainly seem targeted at Kinder, who has been in office either as a Senator or Lieutenant Governor since 1993, the year that Hanaway became a campaign worker for Senator Bond.

Another spot thrown into the mix during that late night show regurgitates attack ads from Brunner’s 2012 Senate race, accusing him of not paying some taxes on time, setting up offshore tax-avoiding accounts, and refusing to make his tax returns public. The spot is backed by one of those character-assassinating super-PACS that lacks the courage to be honest about who is giving it money.   In this case, it’s something called LG-PAC.

Brunner admitted four years ago he and his company missed some payment deadlines.

And for an outfit that won’t reveal the source of its funding for this kind of advertising smears to criticize someone for considering his personal tax returns a private matter—and would YOU want your tax return made public?—is, to say the least, blatant hypocrisy.

LG is an organization that does have to tell the Internal Revenue Service who its donors are.  But Joe Mannies with St. Louis Public Radio, one of the state’s top and long-time political reporters, says the report apparently doesn’t have to be filed until after the August primary.  And don’t bet that LG will be willing to reveal what IT files with the IRS.

So what is LG-PAC?  Several reporters have tried to find out.  It’s registered with the Federal Elections Commission, not the Missouri Ethics Commission, although it is spending money on a state race.  It’s run by Kansas Citian Hank Monsees.

A check of its website indicates it has Brunner, Hanaway, and Grietens in its sights.  But it also has a picture of a smiling Kinder and a link to a newspaper article about one of Kinder’s positions.  Kinder disavows any knowledge of LG’s leanings although the webpage seems to tilt his way.

Scott Faughn at the Missouri Times has reported the outfit’s bank is located in Virginia and has no branches in Missouri.

LG isn’t alone is this swamp.  Mannies also notes American Bridges, which admits its largest contributor is financier George Soros, is most likely to support Democrats and liberal policies.  It’s targeting Senator Blunt.  Blunt, on the other hand, has Karl Rove’s One Nation Super PAC, which already has announced big spending on his behalf. Not connected to the Blunt campaign, of course, but it is unlikely to say anything nice about Blunt’s challenger, Secretary of State Jason Kander.

Another one is called Missouri Rising, an arm of America Rising. It already has done some anti-Chris Koster stuff.

The Missouri legislature and the United States Congress could expose who’s too gutless to openly admit supporting this kind of campaigning that only further weakens public confidence in the election and governmental process.

But gutless birds of a feather flock together. And neither the legislature nor the Congress wants to disturb gutless geese that lay golden eggs.

Capitol credits

If politicians weren’t so self-contradictory, political reporters would have no fun at all.  Saying one thing and doing another, saying different things in different places, taking positions that seem opposite from similar positions provide fodder for those in the press or in the citizenry at large who hope for stability in the political system, particularly stability based on the highest ideals of service to all of the people.  That’s an awfully high bar and probably an unrealistic one but without expecting the highest levels of commitment and service, the alternative can too easily become  the lowest level of results.

The leader of the Missouri Senate, Senator Ron Richard, loves the Capitol.  Even before he became Speaker of the House in 2009, Richard was aware of the building’s deteriorating condition and was looking for a way to restore and maintain the state’s greatest symbol.  We talked during his time as Speaker of his hopes to establish an endowment program, an idea that was worthy but not likely to attract the kind of money that, instead, flows too easily to those who want to hold office in that building.

But what a wonderful thing that would be!   Imagine the endowment that could be established if, say, Rex Sinquefield and the Humphreys family—two entities that throw millions of dollars at candidates every election cycle—would make the same kind of commitment to the Capitol in just one off-year.  It’s not fair to single them out so imagine the endowment that could be created if all of the other special interests and individuals who underwrite campaigns wrote comparable checks to the Capitol endowment fund just once.

But that’s one of the contradictions of our political system.  Restoring and maintaining the building where policy is enacted is always going to be much less important than influencing the people who enact the policies and maintaining that influence.   What value is there in making sure the state’s most powerful symbol of democracy crumbles when money can be better invested in making sure democracy itself, as an institution for the benefit of all, crumbles in the face of protection for the few?

Senator Richard thinks he finally has found a lever that can move his idea for restoring and preserving the State Capitol.  A tax credit program.

About fifty million dollars is being spent fixing some horrible leaks under the south front Capitol stairs.  The water running into basement spaces is causing numerous problems for those who work or store things there.   The money is provided by a bond issue and is therefore limited and has to be paid back out of the general tax collections.  Richard’s plan would provide some ongoing funding without lowering the amount available to pay for state operations.

Richard proposes changes to the present Historic Preservation Tax Credit program that’s important in communities throughout the state.  Some of Richard’s conservative legislative colleagues have a low opinion of them regardless of the value they have to their home towns.  He suggests reducing the historic tax credits by ten million dollars and shifting twenty million dollars into a special fund that could be grown to restore, repair, and maintain the Capitol.

It’s kind of complicated but some of the proceeds from the program would be spent to solicit donations into the Capitol endowment fund.  He thinks his plan would encourage people and trusts and foundations to contribute to the fund, which also would support ongoing needs of the Executive Mansion, the Transportation Department building—which the legislature wants to take over as a Capitol office annex—and, maybe, the Supreme Court Building.

A Senate committee has held a hearing on Richard’s proposal to give it a first public airing.  Richard knows the idea won’t go anywhere this year but he’s gotten it on the table and hopes it can be passed next year.  Some fine-tuning is likely because it seems to raise some concerns in the local historic preservation movement.

But it’s a good start for a proposal to preserve a symbol of the best that Missouri can be.

It’s interesting that Senator Richard wants to raise millions of dollars to preserve and protect the Capitol at the same time he is insisting the Senate spend thousands and thousands of dollars to tear up one of the architectural treasures of the building—the Senate visitors’ gallery—so he can kick the press off of the floor of the Senate where they have sat at a table since the building was brand new, all because of a complaint that grows more petty with the passage of time.

Contradictions.  Reporters love them.  In this case, though, it appears that those who live by the contradiction will suffer by one of them.   Too bad the money earmarked for the effort against legislative reporters couldn’t be invested, instead, in Richard’s more praiseworthy effort to preserve and protect the building—including preserving the Senate visitor’s gallery.


Senator McCaskill’s office sent us a note a few weeks ago reminding us that she and Senator Rob Portman of Ohio would be asking the Senate to start civil contempt proceedings against the website Backpage because it has refused to provide information as part of a committee investigation of sex trafficking.   It has been almost two months since the Senate voted to hold the outfit in contempt and we have received no releases from McCaskill or anybody else indicating anything is being done since the headlines were made in March.

But that’s not where we’re headed with this entry today. Not exactly.

We were struck with the thought—you know how one word can trigger a thought different from the issue being discussed—that a system of government so many people are finding contemptible is, at two levels, showing contempt for the system of which it is a part and at the same time one  body is trying to hold someone else in contempt.  And the public is not blind to it.

The senate that has held the webpage in contempt is the same Senate whose leaders can be accused of showing contempt of the American system of government when it comes to President Obama’s new nominee for the United States Supreme Court.. Closer to home, we suppose, the same could be said of the Missouri Senate whose leadership said weeks ago that it will not consider confirmation of any appointments to the University of Missouri Board Of Curators by Governor Nixon.

In both cases, the Governor and the President have an obligation to make appointments.  One of the roles of the Senate at both the state and national levels is to give its advice and consent to the appointments.  In neither the state law nor federal constitutions is there anything that gives state and national senates power to—or permission to—refuse to consider for confirmation or rejection any nominee the Governor or the President makes until after an upcoming an election.

But there is a “however” factor.

Neither constitution sets any timetable for confirmation so the Senates can delay any hearings until after the appointing officer’s term runs out.  There have been refusals to confirm.  But both standards say the President and the Governor WILL make the appointments and those persons WILL serve—if the Senates consent.  But there is no ticking clock at either level.

In Missouri, we have a law that says a law goes into effect if the governor takes no action on it, either with a signature or a veto.  There is no similar law saying appointments become effective if the Senate takes no action. It might seem fair to some if the “no action” issue cut both ways but don’t expect the Missouri Senate to move toward that kind of balance of powers.

Article II, Section 2 of the U.S. Constitution is clear:  “He shall…nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court…..”

Missouri law (172.030) is equally clear:  “The board of curators of the University of the State of Missouri shall hereafter consist of nine members, who shall be appointed by the governor, by and with the advice and consent of the senate….”

And 172.050, also referring to Curators: “All vacancies which may exist at or during the meeting of the biennial sessions of the general assembly, caused by death, resignation or removal, shall be filled in like manner as those created by the expiration of official terms…”

The President “shall” appoint justices.  The governor “shall” appoint curators. Nothing in the law, nothing in the Constitution, says a governor or a president is excused from that responsibility because they are x-number of months away from leaving office.

In the case of the Board of Curators, the law says the board “shall” consist of nine members.   Resignations have reduced that number to six.  The Missouri Senate’s refusal to consider confirming new members could be seen, we suppose, as violating state law which implies vacancies “shall” be filled. Again, the loophole is that there’s no defined time for the senate to act on curator nominations.

The refusal by state senators to keep the board at nine curators might seem to violate the oath of office they all raised their hands to take, part of which is: “I do solemnly swear, or affirm, that I will support the Constitution of the United States and of the state of Missouri, and faithfully perform the duties of my office…”

Faithfully performing the duties of office includes giving advice and consent to curators’ appointees.  Consent is not required.  “Advice and consent” IS required with rejection an option.  But lawyers probably could argue that the applicable sections of law do not support refusal to act.

Nothing gives the President, the Governor, or either Senate permission to delay making appointments or giving advice and consent until after an election. But it does not prohibit such things either.  One legal source we have looked at refers to the federal Administrative Procedure Act as requiring “courts to determine whether an agency action is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”  While the senates are not agencies, they are nonetheless agents of a system of government that is based on a balance of powers.

For that matter, the state law does not prohibit the Senate from decreeing that it will not consider gubernatorial appointments during the entire four or eight years a governor is in office. That’s taking the current situation to an absurd extent.  But absurdity is not impossible in politics today, particularly this year.

There is this factor, though: Once appointments are made by Governor Nixon and President Obama, the advantage in a campaign year might shift to Nixon or Obama—or to their political parties that do not occupy the majority of seats in either state or federal legislative bodies. The issue could become how long delays by the senates can continue before the voting public becomes convinced the senates are playing political games instead of doing an assigned duty, and how damaging such a perception could become to incumbent lawmakers facing the voters.

It would not be surprising if a number of average citizen were caused to see the refusal of the senates to give timely, fair, consideration to gubernatorial or presidential nominations of people in critical government positions as a violation of the principle of balance and falling well within the definition of “arbitrary, capricious (and) an abuse of discretion” or violations of terms of office.

And that brings us back to contempt.

The Pew Research Center last year found that only nineteen percent of the American public “can trust the government always or most of the time.”  The same survey found that 55% of those surveyed felt “ordinary Americans” could do a better job than elected officials of solving national problems. We keep hearing various experts opine that’s why we have Donald Trump and Bernie Sanders.

Is it any wonder that Americans (and Missourians, of course, are among them) have so much contempt for those in elective office when those officers show contempt for the system they have pledged to uphold?