But theory sometimes clashes dramatically with reality, at least in some cases.  Conservatives currently look at the transplanted Wisconsin and Indiana legislators with a combination of dismay and anger.  A Wisconsin Republican or Indiana Republican could justifiably say, “We won the 2010 election.  But we can’t pass our agenda without minimal cooperation from Democrats.  If winning elections isn’t enough for us Republicans to pass our agenda, when will be able to enact our agenda?”

Also, we could look back to the middle portion of the George W. Bush administration.  In the 2003-2004 Senate, the Democrats only had a minority of 49 Senate seats.  Yet, these Democrats were able to use the Senate filibuster rule, which requires 3/5ths of all US Senators “chosen and sworn” to end debate, to defeat 10 conservative nominees for the US federal court of appeals.  In the 2004 elections, not only did President Bush get reelected; the GOP also gained a net of 4 US Senate seats, obtaining a 55 to 45 seat majority.  Yet still, there was concern among Republicans that the Democrat Senators would continue their filibustering ways against conservative judicial nominees, since the Democrats still had more than the 41 Senators needed to block any judicial nominee from receiving a confirmation floor vote.  To accurately recount the GOP position on the filibuster, however, most Republicans wanted to retain the filibuster rule for legislative items while eliminating the judicial filibuster option. 

When the Republicans lost control over the US Senate and the US House in the 2006 elections, and especially after Obama was elected president in 2008, Republicans looked at the filibuster as the one tool they could use to prevent the United States from becoming Argentina.  The filibuster rule didn’t prevent the enactment of the stimulus plan and the confirmation of Sotomayor and Kagan.  Nor did the filibuster rule prevent the enactment of Obamacare.  This is partially due to the party switch of Senator Arlen Specter, which gave the Democrats 60 Senate seats. 

Yet as we watch Democrat legislators crossing state lines in order to stop the Republican agenda, it is time we examined the whole issue of the minority veto and supermajority requirements.  Is it a good idea to require “bi-partisanship” by requiring supermajorities in order to conduct legislative business?  Or would our country be better off if both the Republican and Democrat parties were able to enact their agenda without the consent of the other political party?  Should the GOP be required to receive the consent of the Barbara Boxers of the world in order to enact the conservative agenda?  Should the Democrats be required to receive the consent of the Jim DeMints of the world in order to enact the socialist agenda? 

This is an important issue because if the GOP wins big in 2012, we can expect the Democrats do use every minority veto tool they can lay their hands on to block the conservative agenda.

We know how dictators are supposed to react to such provocations. They are supposed to use their powers of murder, torture and prison as a means of clamping down on the protesters and making the people fall into line. However, dictators rarely do the killings and torture themselves. They rely on their henchmen, their secret police and their security forces. The dictator becomes vulnerable when the henchmen, the secret police and the security forces decide to disobey the dictator’s orders. Suddenly the dictator has no clothes. The people feel empowered and emboldened.

This is the current situation we see in Egypt today. But this situation also describes many other nations not many years ago, including Spain, Poland, East Germany and South Korea to name just a few. Recently Daniel Korski interviewed former US Deputy Defense Secretary Paul Wolfowitz in which they discussed the situation in Egypt.

Daniel Korski: The Middle East seems to have been taken over by a democratic spirit not seen before, with Tunisia’s Ben Ali forced from power and now Hosni Mubarak looking increasingly vulnerable. But it has obviously put the West in a bit of a bind, as it fears what the new kinds of regimes will bring. Should the West be worried? In many countries, after all, the voice of opposition is the Muslim Brotherhood – and they may take advantage of the events, even if they did not inaugurate and control them initially. Is the price of the Muslim Brotherhood in power worth accepting to set people free?

Paul Wolfowitz: Let’s be clear. We didn’t set the Tunisian people free. They did it for themselves. We should consider ourselves lucky that the Islamists can’t claim any of the credit, but neither can the Western democracies. And the Islamists are certainly hurrying to get into the game. The question now is whether the West can recover from its past inaction in order to be able to have a positive influence on the outcome.

A somewhat similar situation is developing in Egypt, although the Muslim Brotherhood is much stronger there, so the risk of a bad outcome is greater. But there, too, the strength of popular feeling seems to have taken them by surprise and the predominant sentiment in the streets is not strongly Islamist.

Daniel Korski: President Obama (but also the British government) has been hesitant in his reaction to the events in the Middle East. One Foreign Office minister even said the key for the UK was stability. In your view, should Western governments stand on the sidelines or offer more encouragement to the protesters and their demand for freedom?

Paul Wolfowitz: With so much at stake, it is a mistake to be sitting on the sidelines. Western governments can be a positive force on behalf of genuine freedom and against attempts to impose a new kind of tyranny of the Islamist variety. But we can’t do that if we are seen as propping up a hated tyrant, or worse, encouraging the kind of bloody crackdown that could at best produce an artificial “stability” for a relatively short period of time. The possibility of a bad outcome is very real, particularly because we did nothing to encourage more evolutionary change earlier, but I believe we have a better chance of a good outcome if we support positive change than if we support the status quo.

Daniel Korski: A few years ago you talked about “the power of the democratic idea”. Since your time in office, however, US support for democracy-promotion has been on the wane, both rhetorically and financially, while many worry that the West cannot afford to talk so loudly about its values, as we’ve become reliant on non-democratic regimes such as China. What place do you think democracy-promotion should take – in our foreign policy and aid programmes – and how do we deal with the power that non-democratic but powerful investors like China have e.g. in Sub-Saharan Africa?

Paul Wolfowitz: I’ve been involved with democratic transitions for several decades, going back to the remarkable changes that took place in East Asia in the 1980’s – in the Philippines, South Korea and Taiwan – followed by the incredible changes in Central and Eastern Europe and even, for a time, in Ukraine and Russia itself. That period also saw the demise of most of the right-wing military dictatorships in Latin America. Then came another wave in places as different as South Africa and Indonesia and Serbia. Few of these countries would qualify as Westminster-style democracies, but most are far better off as a result of these democratic transitions, and so are we. Even though we often have to do business with undemocratic regimes – and even though some of those regimes do deliver economic progress for their people – it is a mistake to retreat from supporting democratic reform.

There are some conservative commentators such as Tony Blankley who believe the United States should continue to support Mubarak’s regime in order to prevent a Muslim Brotherhood takeover of Egypt. The problem with this suggestion is that dictatorships are inherently unstable because they do rely on the henchmen, the secret police and the security forces to maintain their rule. Once the “enforcers” of the dictatorship no longer see the dictator as a legitimate source of power, once they are no longer willing to kill and torture in the name of the dictator, the dictatorship will soon collapse. It is only a question of when.

But this transitional period is important for the United States. This is when the United States should make it possible for the least radical, the least extreme Egyptians get a chance to participate in the formation of the new government. This can’t be done if the United States is encouraging the dictatorship to put any and all protesters in jail or in the grave.

On Pages 252 to 260 of “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster,” Martin B. Gold and Dimple Gupta explain  how this major rule change was made.  I will quote just a portion of these 9 pages.  But I would recommend to anyone who is interested in learning about how Senate rules can be changed that they click on the above link and at least read pages 252 to 260 (the article starts on page 206).  Even better, read the entire 68 page article. Let’s start on January 14, 1975, when Senators Walter Mondale (D-MN) and James Pearson (R-KS) are confronted with a dilemma. They want to change the Senate rule from two-thirds of all Senators present and voting to invoke cloture (end debate and defeat a filibuster) to three-fifths. But they don’t have the support of two-thirds of the Senate. So how do they avoid the two-thirds supermajority requirement to end debate on their proposed rule change?

On January 14, 1975, Senators Walter Mondale (D-MN) and James Pearson (R-KS) attempted to resolve this dilemma. They announced that they were invoking the constitutional option and were not acquiescing to the prior Standing Rules, irrespective of any Senate action under those rules:

[Mondale:] I wish to state, as has been traditional at the commencement of efforts to amend rule XXII, that, by operating under the Standing Rules of the Senate the supporters of this resolution do not acquiesce to the applicability of certain of those rules to the effort to amend rule XXII; nor do they waive any rights which they may obtain under the Constitution, the practice of this body, or certain rulings by previous Vice Presidents to amend rule XXII, uninhibited in effect by rules in effect during previous Congresses.

Majority Leader Mike Mansfield (D-MT) raised a point of order that Pearson’s motion violated rules XXII and XXXII. He explained that he favored reducing the cloture requirement to three-fifths, not to a simple majority. He stated that because Pearson’s motion would “invoke cloture by a simple majority vote” and disregard the Standing Rules, he opposed it. Vice President Nelson Rockefeller referred Mansfield’s point of order to the Senate body, ruling that “the question of the continuation of the rules of the Senate from one Congress to the next and, more particularly, the procedure by which those rules may be amended, has been considered a constitutional question” and thus one for the full Senate to decide.

This leads to an important event in Senate history with respect to Senate rule changes. The full Senate voted on Manfield’s point of order and indirectly voted on the legitimacy of the Constitutional option, the legitimacy of the Senate changing its rules on a simple majority vote.

The Senate tabled Mansfield’s point of order 51-42. This would mark the first of three times in 1975 that the Senate would go on record supporting the constitutional option.

This vote, however, did not immediately end the controversy. The opponents of changing the Senate rules engaged in additional dilatory tactics to prevent a vote on the Mondale-Pearson rule change. Eventually, however, a compromise was reached.

On March 7, the Senate voted 56-27 to amend rule XXII to provide for cloture by three-fifths of Senators duly chosen and sworn.

The bottom line is this. If a simple majority of US Senators want to change the rules of the Senate, there is nothing that stands in their way of doing so. Also, if you read the entire Gold/Gupta article, you will notice that another option the Senate majority has it simple ignoring the Standing Rules of the Senate and creating a new Senate Precedent. This is what Majority Leader Robert Byrd did several times. The Senate does not always follow its Standing Rules. It often follows its Senate Precedents, which are often in conflict with one or more of the Standing Rules. It is important that grass roots conservatives become knowledgable regarding Senate Rules and Procedures because the interpretation and application of rules and procedures can determine important policy outcomes, including who sits on the federal court of appeals and who sits on the US Supreme Court.

But it is also important to remember that, not too long ago, it was Senate Democrats who were praising the filibuster as an important check on the power of an out of control majority party and it was Senate Republicans who complained of its use. It is also worth remembering that the filibuster is not quite like those “checks and balances” explicitly written into the US Constitution, such as the Presidential veto power, the division of Congress into two distinct legislative chambers and a judicial branch not directly accountable to the voters.

The filibuster isn’t a hard coded check and balance

The reason why 41 US Senators have the capability of preventing legislation from coming to a vote on the floor of the US Senate is because Senate Rule 22 states the following:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

But this portion of Senate Rule 22 is a result of a battle that lasted several weeks over thirty years ago.

On March 7, 1975 the Senate voted 56 to 27 to change Senate Rule 22 from the two-thirds of all Senators present and voting requirement to a requirement of three-fifths of all Senators chosen and sworn. In other words, while in 1974 it might have been necessary to gather as many as 67 votes in order to bring that an item of Senate business to a conclusive up or down vote on the Senate floor, after the March 7, 1975 rule change only 60 votes would be required to obtain an up or down vote on an item of Senate business.

It would seem that one-third of the Senate plus one Senator could block any change in Senate rules, since a two-thirds vote of Senators present and voting is required to enforce cloture on a Senate Rules change. But the change from a two-thirds cloture requirement to a three-fifths cloture requirement on most items of Senate business was initially supported on a straight up or down vote of the Senate. Here’s how it happened.

On February 24, 1975, Senator Walter Mondale of Minnesota moved that the Senate take an immediate vote on his cloture procedure with no intervening debate, motions, or amendments, and upon adoption of his cloture procedure, the Senate take an immediate vote on whether to proceed to consideration of the underlying proposal for three-fifths cloture reform. Senator Mike Mansfield of Montana raised a point of order. Mondale moved to table Mansfield’s point of order and Mansfield’s point of order was tabled on a 48 to 40 vote.

Eventually a compromise was reached and on March 7, 1975 the Senate voted to change the Senate rules by a 56 to 27 vote. Since 56/27 is greater than or equal to 2, 56 to 27 meets the two-thirds requirement and some have argued that a simple majority can not change Senate rules, that only a two-thirds vote of the Senate can. But the record shows that it was the 48 to 40 vote that forced the minority to compromise, knowing that they would lose the battle and wanting to preserve the appearance of a two-thirds requirement for Senate rule changes.

But there have also been times when the Senate has changed its procedures without formally changing its rules. In March 1980, Senate Majority Leader Robert Byrd of West Virginia moved that the Senate go into executive session to begin consideration of Robert E. White as Ambassador to El Salvador. This contradicted existing Senate rules and Senator Jesse Helms of North Carolina raised a point of order against Senator Byrd’s motion:

The Senator can move to go into executive session but he cannot under the rules specify what we shall consider. The Senate determines its order of business in executive session only after going into executive session. It is not in order to determine the order of executive business while in legislative session.

The Presiding Officer of the Senate sustained Senator Helms’ point of order, but Senate Majority Leader Byrd appealed the ruling of the Presideing Officer, which forced an immediate up or down vote by the full Senate. The Senate voted to reject the Presiding Officer’s ruling on Senator Helms’ point of order by a 54 to 38 vote, mostly on party lines where Democrat Senators voted with Majority Leader Byrd and Republican Senators voted with Senator Helms. As a result of the precedent set by that 54 to 38 vote, motions to proceed to consider a specific nomination in executive session are not debatable and therefore can not be filibustered, even though the Senate Rules state otherwise.

This proves that if a majority of US Senators want to change the way the Senate operates, the majority can do so. The majority can ignore the two-thirds requirement to end debate on rules changes as the 1975 Senate did, led by Senator Mondale and the majority can ignore the three-fifths requirement to end debate on Senate business that is normally debatable (and therefore filibuster-able) as the 1980 Senate did, led by Senate Majority Leader Robert Byrd.

The filibuster, therefore, is only available to the Senate minority as long as the Senate majority allows it to be available to the minority. The filibuster isn’t a hard coded check and balance in the way that the Presidential veto power is, in the way that the division of Congress into two separate legislative chambers is, the way that the independent judiciary is. Thus, a simple majority of Congress can not waive Senate and House rules in order to override a Presidential veto nor can Congress pass legislation by making up for a 10 vote defeat of that legislation in the US Senate by winning a 11 vote victory of that legislation in the US House of Representatives. Strong supporters of the filibuster should support making the filibuster a hard coded check and balance against mob rule by proposing an amendment to the US Constitution. This would preclude a Senate majority doing an end run around existing Senate rules.

Cheney, correctly, opposed the Democrats’ judicial filibustering in 2005

When the Republicans took over the US Senate as a result of the 2002 elections, conservatives were hoping that Bush’s judicial nominees, previously prevented from receiving an up or down vote by Senate Majority Leader Tom Daschle of South Dakota, would finally get a chance to be voted on and confirmed. Conservatives saw the 2003 Senate, with its 51 to 49 Republican majority, as a way to put some balance back onto the federal court of appeals. Miguel Estrada was nominated by President to be the first Hispanic on the Washington DC court of appeals. The Republicans surest way to obtain cloture on the Estrada nomination was to have all 51 Republican Senators and a minimum of 9 Democrat Senators vote for cloture. Since most Democrats refused to vote for cloture, the Estrada nomination never came to a vote. Miguel Estrada withdrew his nomination. The Democrat minority of 49 had defeated the Republican majority of 51.

In 2004 the Republicans achieved a net gain of 4 US Senate seats, reaching a 55 to 45 seat majority. The Republicans didn’t have a filibuster proof, 60 seat majority. But anticipating a continuation of the Democrats’ judicial filibustering from the previous Senate, Republican Senate leaders began openly talking about using the Constitutional Option to bypass judicial filibusters. Vice President Dick Cheney announced that he would use his power as Presiding Officer of the US Senate to assist the Senate majority in providing Bush’s judicial nominees an up or down vote, overriding Senate Rule 22.

Cheney Jumps Into Filibuster Fray

Vice President Dick Cheney warned Democrats Friday that he will cast the tie-breaking vote to ban filibusters of President Bush’s judicial nominees if the Senate deadlocks on the question.

Republicans are moving the Senate toward a final confrontation with Democrats over judicial nominations. Internal GOP polling shows that most Americans don’t support Senate Majority Leader Bill Frist’s plan to ban judicial filibusters — a tactic in which opponents can prevent a vote on a nomination with just 41 votes in the 100-member Senate.

“There is no justification for allowing the blocking of nominees who are well qualified and broadly supported,” Cheney told the Republican National Lawyers Association. “The tactics of the last few years, I believe, are inexcusable.”

“Let me emphasize, the decision about how to proceed will be made by the Republican leadership in the Senate,” Cheney said. “But if the Senate majority decides to move forward and if the issue is presented to me in my elected office as president of the Senate and presiding officer, I will support bringing those nominations to the floor for an up or down vote.”

Sen. Charles Schumer, D-N.Y., said the White House “has stepped over the line by interfering with the Senate to reduce checks and balances.”

“The White House has always wanted to reduce the Senate’s power and the fact that Vice President Cheney is encouraging this abuse of power should strengthen the Senate’s resolve to resist,” Schumer said.

In my opinion, the Republican Senate leadership of 2003-2006 was correct in supporting a change in Senate procedure so that 41 US Senators could not defeat a judicial nominee by refusing to support cloture and, thus, denying an up or down vote on that nominee. I also believe that dissenting Republicans, such as Senator John McCain of Arizona, who said that the judicial filibuster should be retained so that conservatives could someday filibuster a liberal nominee was misleading. John McCain, for example, did not filibuster any of President Clinton’s judicial nominees, not even the most radical, activist nominees. In fact, McCain voted to confirm Ruth Bader Ginsberg and Stephen Breyer to the US Supreme Court, even though most Democrats had, only a few years earlier, refused to vote to confirm Robert Bork and Clarence Thomas to the High Court. Bork was defeated 58 to 42 in 1987. Clarence Thomas was confirmed 52 to 48 in 1991.

Republicans should use the Senate Rules to there advantage, until they change them to their advantage

Republicans need to avoid being in a “heads the Democrats win; tails the Republicans lose” situation with respect to the filibuster. Sometimes Senators will argue that, although they do not support the specific item of Senate business (a nomination or a piece of legislation), they will vote for cloture so that the item of Senate business can be voted on. Clearly, this is not how the Democrats’ behaved with respect to the nomination of Miguel Estrada and a host of other Bush nominees to the federal court of appeals. Therefore, I would encourage the Republicans to use the filibuster frequently and relentlessly while they are in the minority. But I would also encourage them to bypass, ignore or change these rules/procedures once they regain the majority.

For example, if the Republicans were to end up with a 56 to 44 seat majority in the US Senate by 2013 and were to win the Presidency, Republicans would have the opportunity to fill several seats on the federal court of appeals and perhaps the US Supreme Court. It is likely that under those circumstances, the Democrat Senate minority would filibuster conservative judicial nominees as they did from 2003 through 2004. If that were to happen, Republicans should use the tactics used by Senator Mondale in 1975 and Senate Majority Leader in 1980 to either change Senate procedure or change Senate rules in order to get conservatives confirmed to the federal courts.

Some say that majority rule is mob rule and that the minority must be able to prevent the majority from abusing power. But there is only one thing worse that rule by the majority and that is rule by the minority. Also, there are sufficient checks and balances in the US Constitution that exist even in the absence of a 60 vote cloture requirement. Congress has two legislative chambers. The President has a veto power. The judicial branch is an independent branch of government. All of these features, built directly into the US Constitution, represent checks and balances. If conservatives believe that the 60 vote cloture requirement is an important check and balance against majority rule, they should (a) consider proposing such as a Constitutional Amendment and (b) should consider how difficult it might be to reform Social Security, Medicare and Medicaid if 60 Senate votes are required, in addition to a majority of the US House and a Presidential signature. Social Security, Medicare and Medicaid will turn the United States into a socialist country unless these programs are reformed. Do we really want 41 Senate Democrats to be able to block that reform? Do we really want 41 Senate Democrats to be able to defeat conservative judicial nominees?

My answer is no.

Let’s take the issue of tax increases first. Some conservatives think that the Republicans will be able to filibuster proposed tax increases by the Democrats.

This is mostly wrong because of the 1974 Budget Act, which limits debate on budget reconciliation bills to 50 hours of debate. Here’s a Harvard law review of the senate filibuster rule

A third method to curtail debate is found in certain rulemaking statutes. The 1974 Budget Act, for example, includes procedures that operate akin to a unanimous consent agreement to limit debate on matters specified by the Budget Act.

In 1993 the Senate Democrats passed the Clinton tax increase by a single vote, the tie-breaking vote of Vice President Al Gore. This is because the tax increase was part of the 1993 budget reconciliation bill and could not be filibustered by a minority of the US Senate.

Usually when someone says, “Let’s filibuster that legislation,” they mean that those opposed to the legislation are in the minority, so that they can not defeat the legislation outright. But they can “talk the legislation to death” by refusing to allow the legislation to come to a vote.

This is because Rule Twenty Two of the US Senate requires that three-fifths of all Senators chosen and sworn must support an end to debate (known in the Senate as cloture) in order for a piece of legislation or an executive nomination to be voted on.

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

It’s important to point out that Senate Rule Twenty Two is not part of the US Constitution. It is only a Senate rule. And Senate rules can be changed or ignored.

First, let’s discuss how the Senate can ignore its own rules by majority vote.

Let’s imagine a situation where the Democrats are trying to pass legislation not part of a budget reconciliation bill, a piece of legislation that can theoretically be filibustered by the Republican minority. If the Democrat Majority really wants to pass the legislation they could use what is known as the Byrd option.

The Democrats would notice that cloture votes repeatedly recieve less than 60 votes because none of the 42 Republican US Senators are willing to support cloture. Senate Majority Leader Harry Reid could say to the presiding officer of the Senate (which according to the US Constitution could be Vice President Joe Biden), “I move that we vote on this legislation.” Vice President Joe Biden could say, “The clerk will call the role.”

At that point we would expect Minority Leader Mitch McConnell to make a point of order that Rule Twenty Two precludes a vote on the legislation being debated. Senator Harry Reid could make a “motion to table” McConnell’s point of order, which would force an immediate vote on Reid’s tabling motion. If the Democrats vote with Senator Reid on their tabling motion, a vote would be held on the legislation, even though fewer than 60 Senators and 0 Republican Senators supported allowing the legislation be voted on.

Second, let’s discuss how the Senate can overtly change the filibuster rule.

They could change it to allow cloture (an end to debate and commencement of voting) to be invoked when 51 Senators support cloture instead of the current 60 vote requirement. Rule five of the US Senate requires that 2/3rds of all Senators support an end to debate on rule changes. However, the Democrats could use the Byrd option to obtain a vote on a rule change without obtaining the 2/3rds requirement.

With a 51 vote requirement replacing the 60 vote requirement, the Republican minority would be powerless to stop legislation without persuading several Democrats to support their position.

Even if the Senate filibuster rule, as it currently stands, is maintained, it disadvantages the Republicans in the long run. This is because the media puts the spotlight on Republican filibusters but barely covers Democrat filibusters. This is why Republican filibusters often result in Republicans backing down and allowing the Democrat majority to vote while Democrats filibuster until they are in the majority.

This is what happened when President Bush and the Senate Republican Majority tried to put conservatives on the federal court of appeals. Republicans did not end the filibuster using the Byrd option because they wanted to “fight fair” and be “bi-partisan.”

But now that the tables are turned, it is unlikely that any of Obama’s judicial nominees, no matter how Left-Wing, will be filibustered while the Democrats have the Senate Majority.

The filibuster rule can not save the US from the November 2008 election result. In fact, the filibuster rule enforces a state of affairs where it is heads the liberals win, tails the conservatives lose.

District 7 seems designed to contain as few Republicans as possible within the Indianapolis metro area. It contains most of Indianapolis. But the wealthier, Republican, neighborhoods are in district 4, represented by Republican Steve Buyer and district 5, represented by Republican Dan Burton.

Perhaps if the Indiana Republicans get control over redistricting, they could put some of the higher income communities into the 7th and remove others. But this doesn’t seem likely, since the GOP would probably prefer to beef up the Republican percentages in the Southern Indiana districts in the hopes of recapturing the seats that they lost in 2006.

Indianapolis used to be a more conservative city, partially because in the 1960s it absorbed the suburban areas to retain conservative voters. A Democrat mayor got himself in trouble on the property tax issue and a tax revolt erupted. Now we have a Republican mayor who served in Iraq. That was one of the few success stories of the GOP during the last few years.

It would probably take a very good year for Republicans to win a seat like this. John Kerry beat George W Bush in District 7 by a 58 percent to 42 percent margin when Bush was beating Kerry statewide by 20 points. So, I’m not sure I want to know how well Obama and McCain did in District 7 two weeks ago. But my guess is that Obama received over 70 percent of the vote here.

This district is somewhat dependent on the automobile industry. I think there is a General Motors plant located within the Indianapolis city limts. This probably explains why some of the local politicians are supporting the Democrat bailout plan.

The GOP shouldn’t give up on this district completely. But I do not expect this district to be on the GOP’s target list, unless the GOP is loaded with campaign cash and wants to spread it beyond the top 25 to 50 most competitive House races.

There are lots of Senate traditions that obstruct the nation’s ability to meet its responsibilities. The attitude among many Republicans, unfortunately, is that “we’ve always done it this way.” Given the problems that have resulted from doing things this way, we need some change we can believe in.

The fact of the matter is that RINO Republican US Senators should be placed on the Senate committee to investigate excessive salt use among teenagers while conservative Republican US Senators obtain seats on Judiciary, Appropriations, Finance and other important committees. If we do not do this we can not be surprised if the Republican party fails to make a difference when it does have majority control.

We talk alot about “moral hazard” and encouraging bad behavior when we bail out insolvent corporations. How about a discussion of the moral hazard of giving moderate Republican wimps plumb chairmanships while conservatives are told to sit on the back bench?

Mary Katharine Ham at the Weekly Standard discusses, briefly, the principle of the Future of the GOP.

Jim DeMint is angling for a spot on the seat on the finance committee, despite lagging several others in seniority. His argument? The spot should be awarded based on merit. Now, that would be some serious change in the Senate.

The Democrats are ready to boot Lieberman off of the Chairmanship of Homeland Security because Lieberman didn’t fall in line on the Iraq War and in the 2008 campaign. It actually makes a bit of sense. If you want to be “Mr. Independent,” don’t come crying to the GOP when you want a chairmanship or a seat on a powerful committee.

However, stepping back for a moment from the results of last week’s election results, I believe that the 60 vote requirement for cloture (end of debate and commencement of voting on legislation or a presidential nominee) has hurt the cause of conservatism.

Spiral’s Definition of a Filibuster: (Using the Senate’s 60 vote cloture rule to prevent legislation from getting a vote or to prevent a president’s nominee from receiving a confirmation vote.)

Mention the idea of reforming the filibuster rule to many conservatives and the response is that we need a 60 vote requirement in the Senate (out of 100 US Senators) because otherwise bad legislation would get enacted by a majority. We need to be able to block bad legislation when we are outvoted/outnumbered. The filibuster is “conservative” in the sense that it allows a majority of US Senators to “conserve” the status quo.

This sounds good in theory. But in practice bad legislation gets enacted despite the filibuster while good legislation gets defeated by it. The same is true for judicial nominees. The 60 vote cloture requirement might have killed several conservative judicial nominees during George W Bush’s presidency. But it never caused the defeat of President Clinton’s activist judicial nominees. (In the 1990s procedures other than the filibuster were used by Senate Republicans were used to kill Clinton nominees while the Republicans held the majority of the US Senate.)

There are several simple explanations for this. The first is that the news media labels Republican filibusters obstructionism, while Democrat filibusters are either not covered by the news media or applauded by the news media as examples of profiles in courage. The result is that Republican filibusters are short-lived and the bad legislation eventually passes. Democrat filibusters successfully kill the good legislation or the conservative nominee for the courts or executive office.

I’m a strong believer in the philosophy that you play by the same set of rules that your opponent plays by. So, I would not suggest that Republican Senators restrain themselves from using Rule 22 (the Senate’s 60 vote cloture rule to end debate). I suppose they could do this and then, on some future day when the Republicans obtain majority status in the Senate, tell the Democrats that they should live by our positive example. But history shows that the Democrats are more interested in winning the issue at hand while Republicans are more interested in convincing themselves that they are more civilized in political combat than their Democrat counterparts.

So what am I proposing? Republicans should propose a Senate rule that would make it possible to end debate with 51 votes instead of 60 votes. There would be one important difference. Currently there is a two day delay between the time a cloture motion is filed and when the cloture motion is voted on. The new 51 vote cloture rule would expand this delay to seven days. This would have the salutory affect of letting Senators have time to read legislation before voting on it.

Conservatives often complain that election results don’t seem to mean anything, at least when conservatives (or at least Republicans) win elections.

We saw this after the 2002 and 2004 elections. We won control over the US Senate and the White House but we still lacked the votes to get conservative judicial nominees onto the federal court of appeals. In a few months all of those vacancies on the federal court of appeals created by Democrat filibustering and Republican assistance to that filibustering (i.e. Gang of 14) will be filled by ACLU oriented nominees. The results could set the US back significantly in all areas of law.

Since Republicans consistantly fail to use the filibuster as effectively as the Democrats (notice how the Democrats successfully filibustered drilling in ANWR?), it would be better if the Republicans offered to dramatically change it so that, in the present and future, the majority rules.

In 1995, after this new GOP Congress was sworn in, they made up for lost time. They decided that “the next generation” was “more important than the next election” and attempted to reduce the rate of growth in the Medicare entitlement program. Since they believed they had a clear mandate from the voters, they attempted to force President Clinton to sign their budget. US House Speaker Newt Gingrich told a radio talk show host and his audience that he would shut the government down if President Clinton did not “accept a reasonable budget agreement.”

At first it seemed as though conservatives would finally roll back the destructive and expensive Great Society programs enacted in the 1960s and reform those of the New Deal enacted in the 1930s. But once the budget fight started, the Democrats and President Clinton won the battle for public opinion, with lavish assistance from the Mainstream Media. One Democrat US Senator, Frank Launtenberg from New Jersey, stated the Democrats’ sound bite: “We won’t let Newt Gingrich hurt the elderly.” It was politically effective even if it lacked the advanatage of being true.

The 1996 elections brought good news and bad news for conservatives. The bad news was that President Clinton was reelected in with a 49 to 41 percent mini-landslide over Senator Bob Dole. The good news was that the Republicans were able to hang on to the US House (losing 9 seats) and the US Senate (gaining 2 US Senate seats). But the Republican Congress would never be as aggressive in advancing the conservative agenda as they were in the year 1995, before Clinton’s string of vetoes prevented them from enacting that agenda.

During the second Clinton term, both parties acted as though they were following a script. Democrats and Clinton would accuse the Republicans of short-changing education, the elderly and the “vital safety net.” Republicans would at first argue their case, then back down and appropriate the spending increases that the Democrats demanded.

Toward the end of the Clinton administration, with the GOP Congress desparate to not appear heartless, the Republicans had a difficult time keeping up with Democrat demands. The GOP congress would accept the Democrats’ demands on the low-income heating assistance program. Hours later the Democrats would increase their demands again, hoping that the GOP would refuse and hand themselves and Al Gore a campaign issue for the 2000 presidential and congressional races.

I hoped that the 2000 election of Governor George W Bush and the reelection of the Republican Congress would put an end to the constant budget fights and finally result in the enactment of the conservative agenda, even if the new conservative agenda might be more “compassionate” and therefore more expensive.

But it was not to be. The GOP lost 5 US Senate seats (1 due to the death of George US Senator Paul Coverdell and 4 on election day), resulting in a US Senate that was, at first, split evenly between the parties. The Republican majority in the US House was retained, but had seen its majorities reduced by losing seats in the 1996, 1998 and then 2000 congressional elections.

In addition, Republican US Senator John McCain made it very clear early on in 2001 that he would not be an automatic vote for the conservative agenda. McCain signed on to the Patients’ Bill of Rights that Al Gore campaigned on and was co-sponsored by John Edwards and Ted Kennedy.

Even as the economy fell into recession, McCain made clear his opposition to any of Bush’s proposed tax cuts, using class warfare rhetoric that should have made Senate Democrat Leader Tom Daschle very happy.

In early 2001, it looked to me as though President Bush would be defeat for reelection in 2004 for the exact same reasons his father was defeated in 1992: A sluggish economy and a Congress that refused to do anything to stimulate it for fear of helping “the rich.”

After Republican Jim Jeffords switched parties and handed the Senate to the Democrats, things looked bleak. Senate Democrats refused to consider any of Bush’s economic stimulus plans and would only agree to extending unemployment benefits. Democrats also prevented Bush’s judicial nominees from getting hearings from the Senate Judiciary Committee.

September 11, 2001 changed everything. Bush’s leadership in the war on terror made the Republican party instantly more popular than it had been since the early months of 1995. The Democrats tried to catch up with public opinion by sounding patriotic. But in the November 2002 mid-term elections, the voters decided to vote with the party more closely associated with nationalism and patriotism: The GOP.

The Republicans won back the US Senate, a 51 to 49 seat majority. I believed that Bush would get the necessary tax cuts to stimulate the economy and Bush’s judicial nominees would get confirmed.

I was half right.

The Senate Democrats introduced their filibuster strategy, with DC circuit court of appeals Miguel Estrata being their first target. After repeatedly failed cloture votes, a minority of US Senators had defeated a judicial nomination. There would be several others.

Taxes were cut, however. And the economy quickly began gaining jobs. It was unclear if President George W Bush would be the first president since Herbert Hoover to lose jobs in his presidency. It was also a race against time to see if Iraq could be civilized in time for the November 2004 presidential election.

Iraq was still a mess by November 2004, but Bush narrowly defeated John Kerry, this time winning the popular vote by 3 million nationwide. The Republicans gained a net of 4 US Senate seats and looked like they might be able to break the logjam on conservative judicial nominations. But even with a 55 to 45 seat majority in the US Senate, President Bush would not see all of his judicial nominees receive a vote on the floor of the Senate.

The Republican Senate leadership announced that they would resort to overriding Democrat sponsored judicial filibusters with a simple majority vote. To accomplish this they would need 50 of their 55 to vote with them. Vice President Cheney announced that he would rule in favor of this change of Senate precedent as the presiding officer of the Senate and break a 50 – 50 tie if necessary.

John McCain added uncertainty to the discussion over judicial filibusters when he appeared on Chris Matthews’ Hardball program on MSNBC and announced that he would vote with the Democrats on the issue of whether the Democrat minority would be allowed to retain the judicial filibuster. Weeks later Republican Senators McCain, Chafee, Snowe, Graham, Collins, Warner and DeWine agreed with 7 Democrat US Senators and signed the “Gang of 14″ agreement. It would allow some of Bush’s judicial nominees to be voted on. Others would not receive an opportunity for a vote.

The possibility of confirming additional conservative nominees was reduced further when the Democrats won control over both houses of Congress in the 2006 mid-term elections.

If one wanted to be charitable, one could argue that the explosion in government spending that occured under President Bush and the GOP Congress was due to 2 factors:

[1] Memory of how public opinion turned against Speaker Newt Gingrich and the GOP Congress in 1995 and toward President Clinton during the budget fights.

[2] Diverted attention from the issue of government spending due to the attention demanded on the war on terror, the war in Iraq and issues surrounding the Patriot Act, wiretapping, Gitmo.

But what is left unexplained as this GOP era comes to a close after 14 years is why the Republicans were willing to be so principled in their pursuit of reducing the size of government while President Clinton was in office but were so unwilling to take any risks while a President of their own party was in the White House.

Most of the time, the best time to hit the gas pedal is when the light is green, not when it is red.

I admit that when I read the polls showing that Indiana was considered a “battleground state,” I shrugged it off, remembering how some pollsters in the closing days of the 2004 presidential election believed that the Bush-Cheney ticket might win Hawaii. Cheney even made a trip to the Aloha state. I also figured that if McCain failed to win a state like Indiana, he would lose in a landslide in any case.

But Obama won Indiana. And while it was a decisive victory, it wasn’t a complete blowout either. So why did my new home state vote Democrat?

Let’s first realize that the Democrats did not sweep the races in Indiana. Governor Mitch Daniels won a solid reelection victory. Looking at the votes broken down by county, you can see why McCain narrowly lost the state. While Daniels won Marion county, the most populated county in the state and nearly identical in boundary to the city of Indianapolis, he also won huge margins in the suburban counties outside Indianapolis, in Hamilton, Hancock and Shelby counties.

McCain? He got slaughtered in Marion county. And his margins in the suburban counties were lackluster. So Obama won the Indianapolis metro area.

Now let’s compare the two Republican candidates. Mitch Daniels is a traditional conservative Republican. John McCain is a maverick.

The next time a Republican candidate for President tells you that they know how to “reach across the aisle” and “work with Democrats” to “get things done” and they use this as a qualification for being the GOP nominee, tell him (or her) to look at the results of our election in Indiana last week. Being a traditional conservative is a winning strategy here. Being a wishy-washy maverick is a way to get beat.

But then came a reluctance on the part of some Republican Senators to use the Byrd option (some call it the Constitutional option or the Nuclear option). So we ended up with the deal called “Gang of 14.”

The Gang of 14 deal tentatively took the Byrd option (which would have broken judicial filibusters by a majority vote) off the table, but would only have permitted judicial filibusters under “extraordinary circumstances.” Some of Bush’s judicial nominees received up-or-down votes. Others did not.

Now, as we begin looking ahead to Obama’s judicial nominations, we need to consider a new Gang of 14 deal. Judicial filibusters should be allowed, perhaps encouranged given the likelihood that Obama will nominate pro-same-sex marriage and pro-abortion activists to the federal courts.

What lies ahead of us is the hard work of convincing moderate Republican US Senators to join with their Senate caucus and filibuster Left-Wing Obama judicial nominees.

What’s good for the Democrats is good for the Republicans. Right?

Can we get the Republican members of the Gang of 14 to help us out one more time and seduce “moderate” Democrats into an agreement to preserve the ability of the minority to block judicial nominations?

As I remember it, here is a list of Republican US Senators from the Gang of 14 who will serve in the 2009-2010 US Senate:

John McCain
Olympia Snowe
Susan Collins
Lindsay Graham

So what do you think? Should the Gang of 14 (or Gang of 4) get busy and promote a sequel to the previous bi-partisan agreement on judicial nominees?

We can see why this mortgage would be worth more money to the originating bank than another bank as we watch this credit crisis unfold before us. If the originating bank believes it is going to hold on to the mortgage and receive the monthly payments, it is going to make sure that (a) the property is worth what the borrow is paying, since the mortgage value is tied to the property value (b) the borrower does have a good credit history, income and is bringing his or her own assets to the closing. If the originator of the mortgage is going to immediately sell this mortgage to another financial institution, there is an incentive to have the property appraised at a value higher than market value. There is also an incentive to accept claims of income and assets without verifiction.

The FDIC actually encourages banks to hold mortgage backed securities backed by mortgages originated by other financial institutions rather than originate its own mortgages. This is done by the way the FDIC assigns a risk score to an FDIC member bank’s assets. As amazing as it sounds, a mortgage with a 20 percent down payment orignated by the bank holding the mortgage is considered an asset of higher risk than a mortgage backed security backed by mortgages made to borrowers who put less than 10 percent downpayments on their purchases.

Like Fannie Mae and Freddie Mac, the FDIC provides a system where risk is placed on the taxpayer while profits are enjoyed by private investors. Should a seriers of bank loans go bad, resulting in a series of bank failures, the federal taxpayer has to pick up the tab if the FDIC reserve is not sufficient to pay depositors. Socialization of risk, privitization of profit.

A superior system would be as follows:

(a) FDIC bank membership would be voluntary. Banks could choose to be FDIC memmbers or choose not to be FDIC members.

(b) FDIC bank membership would require that 80 percent of bank deposits be invested in short term federal debt, among the lowest risk debt instruments available. This would protect the federal taxpayer and minimize the federal government’s subsidization of risk in the financial markets.

(c) Banks that choose not to be members of the FDIC would not have their deposits insured by the federal government. These banks would be required to notify all of their depositors upon opening an account that their deposits are subject to market risk, similar to the risk of investing in the stock market. Also, non FDIC banks would have inform their depositors of the riskiness of their deposits on a semi-annual basis.

(d) Non FDIC member banks would be allowed to lend their deposits with limited regulation by the federal government.

Other important reforms would include the privatization of Fannie Mae and Freddie Mac and a reduction, if not outright elimination, of Federally insured mortgages. The purpose of these reforms would, again, be to limit the exposure of the federal taxpayer for delinquent mortgage loans.

Secretary Henry Paulson responded to criticisms regarding the 700 billion dollar bailout by saying, “The taxpayer is already on the hook.” This is true and this is the fundamental problem. The federal taxpayer should not be liable for investments that do not turn out the way the investor/bank hoped.

These reforms would probably put an end to the industry of secrutizing mortgages. Instead, we would probably see mortgages serviced by the originating bank.

The fact of the matter is that mortgage securitization would never have become such a large part of our financial structure if the government had not heavily subsidized mortgage securitization through Fannie Mae, Freddie Mac and FDIC’s “risk scoring” of mortgage assets.

We sometimes wonder how we inherited a financial system that is fundamentally unsound and often in need of taxpayer cash to keep it operating. Now we know.

But how hard has the McCain-Palin campaign and the Republican National Committee tried to get this message out? Congress is arguably more powerful in terms of its influence over the economy than the President is.

Commuinicating this message to the American people about the difference in performance might make people think differently about the “change” issue. The American people would still desire change, but they might decide that changing the party that holds Congress is the way to go, rather than changing the party that holds the White House.

Democrats often say that the economy and the stock market performed well under President Clinton. But they usually leave out the fact that during 6 of Clinton’s 8 years as president America had a Republican controlled Congress.

The people will not learn this information from the mainstream media. It’s up to McCain-Palin and the RNC to get the message out.