Democratic Leadership: Proving it is Worthy of Minority Status

George C. Landrith

With folks like Democratic National Chairman Howard Dean and Senate Minority Leader Harry Reid (D-NV) speaking for Democrats, it would appear Democrats prefer minority status and will remain on the periphery of political relevancy. Howard Dean has proven time and again that his screaming tirade in Iowa, which arguably ended his presidential candidacy, was not an out of character moment, but rather is the norm. Harry Reid is spewing misinformation and falsehood so rapidly, one is left to wonder if he is profoundly ignorant and uninformed or simply so mendacious that he has become comfortable with deception and falsehood.

Let’s start with Howard Dean who speaking to Democrats in Massachusetts went on a tear about Tom DeLay and said, “I think Tom DeLay ought to go back to Houston, where he can serve his jail sentence.” That was only part of his tirade. Dean became so unrailed that even ultra-liberal Congressman Barney Frank (D-MA) who was in attendance came to DeLay’s defense. Frank called Dean’s rant “very unfair” and said “I think it was inappropriate.” “I'm a great critic of Tom DeLay's … but to say that he's a criminal … there's no basis for that,” Frank said.

But it gets better. Does anyone remember presidential candidate Howard Dean’s staunch defense of Osama bin Laden? He expressed concern that Osama was being “convicted” without a fair trial. Here are Dean’s own words during the 2004 Democratic primary, “I've resisted pronouncing a sentence [on Osama bin Laden] before guilt is found.” Dean continued, “I still have this old-fashioned notion that even with people like Osama, who is very likely to be found guilty, we should do our best not to, in positions of executive power, not to prejudge jury trials.”

Interesting isn’t it? To the leader and spokesman of the Democratic Party, an American citizen and a Member of Congress with whom Democrats disagree on policy issues should be thrown in jail without so much as a credible allegation of criminality and without any indictment or trial. But if you’re a self-admitted terrorist personally responsible for killing thousands of Americans, the Democrat’s leader thinks it is important to stand up for the murderous terrorist and make sure that no one prejudges the matter. This explains why Democrats have been losing elections of late. Why should Americans trust a party to responsibly govern when the party’s leader and spokesman holds such obviously unprincipled and inconsistent positions?

Now let’s turn to the other leader of the Democratic Party, Senate Minority Leader Harry Reid. In the debate over the unprecedented simultaneous filibuster of 10 judicial nominees, Harry Reid is entitled to argue whatever suits his fancy. But he is not entitled to spew falsehoods nor is he entitled to misrepresent well-established fact and history. In this debate, Reid and other Democrats and most of the mainstream media repeatedly state that changing the filibuster rule would “destroy over 200 years of Senate history.” Reid has repeatedly said and implied that the filibuster has always been a part of the Senate. This is flatly false and a gross misrepresentation of history.

The filibuster is a procedural rule that allows a small group of Senators to prevent the entire Senate from voting on a measure by simply talking it to death. In most legislative bodies, a majority can end the debate and call for a vote. The filibuster prevents a majority from ending a long debate and calling for a vote. To hear Harry Reid and others talk, you’d think the filibuster is a fundamental part of our Constitution or at least that it has existed since the first Senate was called into session. However, this is demonstrably false.

The filibuster is not found in the Constitution and it is not part of our constitutional system of checks and balances. In fact, the Senate first met and adopted rules in 1789 and those rules included no filibuster. Originally, a simple majority of the Senate could end a debate and force a vote. Simply stated, the Senate did not originally have any filibuster or unlimited debating rights. Debate was stopped at any time by a simple majority vote. Later, by sheer oversight, Senate rules were changed and as an unintended consequence the filibuster became possible. But it was not until 1837, that the first filibuster actually occurred. It lasted only a few hours.

Historically, filibusters of any type have been quite rare. Most Americans have never witnessed a filibuster except in Hollywood movies. It was not until 1949 that the filibuster and the rules to end a filibuster (known as the cloture rule) applied to judicial nominations. Since that time and before 2001, extended filibusters of appellate judicial nominations who had majority support never occurred. It is unprecedented to filibuster 10 judicial nominations at once, some for longer than four years.

Thus, Harry Reid is dead wrong when he says that Republicans want to change over 200 years of tradition. The original Senate clearly did not think unlimited debate was important or even appropriate as they could have created the right of unlimited debate but chose not to. Moreover, the filibuster and the rules for stopping a filibuster have changed many times. At different times in our history, a simple majority could end debate and require a vote and at other times the entire Senate was required and at other times various super-majority requirements were required to bring a matter up for a vote.

Given these facts, it is impossible to fairly or honestly argue that returning to the majority vote rule to end a four-year filibuster on judicial nominations violates the Constitution or damages historical precedent. But, of course, facts and truth are of no concern to Harry Reid. He has grown fond of accusing others of being drunk with power. Perhaps he should look inward.

With leaders like Dean and Reid, there is little prospect that Democrats will crawl out of their minority status. Americans will not likely trust their government to those who speak disingenuously or misrepresent fact and history only to promote their own power and interests. Nor should they.

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Mr. Landrith is a graduate of the University of Virginia School of Law, where he was Business Editor of the Virginia Journal of Law and Politics. He had a successful law practice in business and litigation. In 1994 and 1996, Mr. Landrith was a candidate for the U.S. House of Representatives from Virginia's Fifth Congressional District. He served on the Albemarle County School Board. Mr. Landrith is an adjunct professor at the George Mason School of Law. He is recognized as an authority on constitutional law and jurisprudence, federalism, global warming, and property rights.

george@ff.org