Free Speech Was Never Like This

Steven Dutch, Natural and Applied Sciences, University of Wisconsin - Green Bay
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The editorial 'Nuking' Free Speech By Senator Robert Byrd of West Virginia appeared on Friday, March 4, 2005 in the  Washington Post (Page A21)

A "nuclear option" is targeting the Senate. No, this isn't some terrorist plot. Rather, some in the Senate are considering dropping a legislative bomb that threatens the rights to dissent, to unlimited debate and to freedom of speech.

President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year. To force a vote on these nominees, some senators are hoping to launch a parliamentary weapon aimed at the heart of open and extended debate. By a simple majority vote, a Senate filibuster on judicial appointments would be "nuked" for all time.

Strange, isn't it, that Congress apparently can't reverse a decision? If they decide that majority vote isn't a good idea, they can't increase the vote margin again? For that matter, why does it have to be a majority? Why can't any Senator call for a vote at any time?

It starts with shutting off debate on judges, but it won't end there. This nuclear option could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate's very essence -- the constitutional privilege of free speech and debate.

Under the existing rules, Senators can talk as long as they like, but if the Senate invokes cloture, then debate has a time limit. According to the Senate glossary page, cloture is defined as "The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes."

Senators have frequently used filibusters, or extended speeches, to block debate. Debate in the Senate was unlimited until 1919 when a rule permitting cloture with a two-thirds vote was adopted. In 1975 the majority required was cut to the present three-fifths.

The Constitution gives Congress the right to set its own rules and Congress has already done so. The House limited debate long ago because the growing size of the House made unlimited debate impractical. The Senate limited debate and then reduced the majority needed to invoke cloture.

30 hours is the total lecture time in a two-credit semester-long college course. Anything worth saying on any legislative issue can be said in that amount of time. The only function of unlimited debate is obstruction.

As for stifling free speech, Senators will still be free to put whatever they want in the Congressional Record. They can hold press conferences, publish guest editorials, send out mailings to their constituents, publish Web sites, and stand on the Capitol steps and yell. Limiting debate in the Senate restricts only their right to obstruct.

To understand the danger, one needs to understand the Senate. The Framers created an institution designed not for speed or efficiency but as a place where mature wisdom would reside. They intended the Senate to be the stabilizer, the fence, the check on attempts at tyranny. To carry out that role, an individual senator has the right to speak, perhaps without limit, in order to expose an issue or draw attention to new or differing viewpoints. But this legislative nuclear option would mute dissent and gag opposition voices.

Lurking in the shadows is the embarrassing fact that half a century ago filibusters were used in this "place where mature wisdom would reside" to obstruct votes on civil rights legislation. The (then) two thirds rule to invoke cloture was a good cover for Senators who opposed civil rights legislation but lacked the integrity to say so. All they had to do was vote against cloture and the bill would die without any accountability attaching to them. Thus did the Senate act as a "check on attempts at tyranny."

We have heard the president call for an up-or-down vote on his judicial nominees. But nowhere in the Constitution is an up-or-down vote -- or even a vote at all -- guaranteed, and the president cannot reinterpret our nation's founding document to achieve his political goals. Those who disagree with the president in this matter will be labeled "obstructionists," but nothing could be further from the truth.

Well, nowhere in the Constitution is there anything guaranteeing Congressmen the right to block legislation, either.

A federal judge is selected for a lifetime appointment. Senators must apply their best judgment to each selection. If a senator believes a nominee should not be confirmed, that senator has a duty not to consent to confirmation.

A no vote is an effective way to do that. And 200+ years of experience has revealed starkly that self-regulation doesn't work in the courts any better than it does the medical profession, the legal profession, or Wall Street. Maybe it's time to consider whether the Founding Fathers, for all the brilliance of their work, might not have made a few bad calls. If the issue is lifetime appointments, maybe that's the rule to change.

Of all the checks and balances in the Constitution, the weakest are those on the courts. Congress can set certain issues outside the jurisdiction of the courts, impeach judges (a real nuclear option) and control the makeup of the courts by affirming or rejecting nominees. And that's it.

 Yet, for the temporary goal of confirming a handful of objectionable judicial nominees, those pushing the nuclear option would callously trample on freedom of speech and debate.

If senators are denied their right to free speech on judicial nominations, an attack on extended debate on all other matters cannot be far behind. This would mean no leverage for the minority to effect compromise, and no bargaining power for individual senators as they strive to represent the people of their states.

Gee, it's worse than I thought. Senators will be reduced to arguing ideas on their merits instead of resorting to parliamentary trickery.

Realistically, the filibuster has never been anything other than an obstruction mechanism for people who couldn't sell their ideas on their merits. Everyone else in Congress went along because they thought they might need to do the same thing themselves some day.

Yes, Americans believe in majority rule, but we also believe in minority rights. Our liberties can be truly secure only in a forum of open debate where minority views can be freely discussed. Leave it to the House to be the majoritarian body. Let the Senate continue to be the one in which a minority can have the freedom to protect a majority from its own folly.

If "chutzpah" is killing your parents and then begging the court for mercy because you're an orphan, this paragraph isn't far behind. Where are minority views more likely to be heard, in the Senate with 100 members or the House with 435? Who's more likely to listen to the views of small constituencies, a Representative who is responsible for a district, or a Senator elected at large from an entire State?

Weirdest and most offensive of all is the idea that obstructing others is a protected form of free speech. You can block a building (except an abortion clinic) during a sit-in, shout down and drown out a speaker, or tie up the Senate in a filibuster, and that's free speech.


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Created 29 April, 2002, Last Update 02 June, 2010

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