NRB will continue to speak out on this issue, and keep members up to date.  

[Kathleen A. Kirby and Samia Khan, "Court of appeals rehears oral arguements on remand from Supreme Court on FCC's fleeting profanity and fleeting nudity cases," Wiley Rein LLP, lexology.com, February 17, 2010.]

to death, as it has often been called, became the filibuster as we know it.

As far back as the mid-Nineteenth Century, Senators have decried the use of the filibuster when it did not suit their own political aims. Yet the concept of being able to stop a filibuster remained in the consciousness of some Senators, and in 1917, the system of “cloture” was first created at the apparent urging of President Woodrow Wilson. Adopting Rule 22, the U.S. Senate was allowed to end all Floor debate on a legislative matter by taking a two-thirds majority vote – a cloture vote. Though this modification of the filibuster was made in 1917, it was not first used until 1919 when the Senate used it to stop a filibuster against the Treaty of Versailles.

Despite the Senate’s newfound power, cloture votes were not frequently won because the two-thirds majority was very difficult to obtain. So in 1975, after decades of effort at “cloture reform,” the Senate once again changed its own rules to require a three-fifths vote for cloture. Instead of needing 67 votes, the party hoping to end a filibuster only needed 60 votes. That is the same rule still being applied today.

This seemingly arcane bit of history is extremely significant for several reasons. Senators have the legislative power to filibuster almost anything – a Supreme Court nominee, a federal judicial appointee, a military appropriations bill, social policy legislation – most things can be stopped by a Senate filibuster. Having the ability to end a filibuster is therefore the most powerful weapon a party leader could wield. It goes beyond the collegial system and far beyond the desires of constituents. If you can stop a filibuster and force a vote on a nominee or piece of legislation, you have the ultimate power in the U.S. Senate, especially since a powerful Senate can stop legislation from the House of Representatives or undermine the will of a popular President.

Now apply this information to today’s political landscape. Both chambers of Congress are currently controlled by the Democrat Party, and the House of Representatives is, in general, more aligned with that party’s stated agenda. Yet the Senate is much more difficult for party bosses, or the Executive Branch, to control. Such control would be much easier if the filibuster was changed, so it’s little surprise that reports this week demonstrate that the idea is alive and well. In fact, two days ago, Senate Majority Leader Harry Reid (D-NV) pledged “filibuster reform” during a speech given at the Progressive Media Summit on Capitol Hill. “…[W]e’re going to take a look at the filibuster,” said the Majority Leader. “Next Congress, we’re going to take a look at it. We are likely to have to make some changes in it, because the Republicans have abused that just like the spitball was abused in baseball and the four-corner offense was abused in basketball.” Sen. Chuck Schumer (D-NY), who chairs the Senate Rules Committee, spoke right after Leader Reid, adding: “The Rules Committee is going to start holding hearings on how to undo the filibuster rule.” After their speeches, Chairman Schumer reportedly told The Huffington Post that the hearings would begin in two or three weeks.

Since the real changes to the filibuster will probably not take place during this Congress, legislation that is critical to the President or the Democrat Party, for example, may still be subject to an organized filibuster through the end of this year. In January of 2011, however, everything may change. Since 1917, the theory of a “Constitutional Option” has been debated now and again in the Senate. This theory claims that the Senate is not a “continuing body,” but rather, per Article I Section 5 of the Constitution, a legislative body that may re-write its rules at the beginning of each new session. Following that logic, and assuming that the Democrat party retains its majority through the 2010 elections, Vice-President Joe Biden will preside over the new Senate in January 2011, and as President of the Senate he will declare that the new session of Congress (112th) is in order. He may then attempt to declare that new Senate rules should be drafted, rules that would no doubt include a complete change in the filibuster process, as already prepared following Sen. Schumer’s committee hearings this year. Here’s the critical part: if this parliamentary maneuver succeeds, Senators would be able to appeal the decision for a rules change, but their appeal would most likely be subject to a simple majority vote – a point argued by Sen. Ted Kennedy in 1975 during debate in the 94th Congress. Thus a simple majority (51 Senators) may be able to use a parliamentary procedure, available at the beginning of a new Congress, to force rules revisions that would end the real filibuster forever. The theory itself has been debated for almost one hundred years; it may soon become reality.

It is not difficult to forecast the usefulness of such “filibuster reform.” For example, if health care legislation does not pass in this Congress, a filibuster-less 112th Congress provides two additional years (and the last two years of President Obama’s first term) in which to pass the legislation with muted minority dissent. Judicial appointees would pass more easily, as would any Supreme Court Justices that the President might nominate. In a system where the President and Congress hail from the same political party, power would flow toward the Executive and away from Congress.

One would hope that any honest political scientist or student of history, regardless of his or her own political affiliation, would forecast danger in this paradigm shift. Our country remains the most free nation in the world because of the particular genius our Founders infused into the system: tripartite governance. If the system of checks and balances is seriously eroded, then the very fabric of our nation is at risk. Senators absolutely must retain their ability to slow the fast engines of populist change that often sweep through the House of Representatives, or the Executive branch, or both. To completely adjust the throttle of the current system could spell disaster.

[“Filibuster and Cloture,” Senate Historical Office, senate.gov; Sam Stein, “Harry Reid Pledges Filibuster Reform,” The Huffington Post, March 10, 2010, 1:20 p.m.; Max Fisher, “Can Reid Kill the Filibuster?” The Atlantic Wire, March 11, 2010, 9:08 a.m.; Christina Bellantoni, “Reid: Time To Change the Filibuster,” Talking Points Memo, TPM.com, March 10, 2010, 1:19 p.m.; Martin B. Gold & Dimple Gupta, “Constitutional Option To Change Senate Rules And Procedures: Majoritarian Means To Over Come The Filibuster,” Harvard Journal of Law & Public Policy, Vol. 28 Number 1, Winter 2005.]


The President's Column was prepared with the valuable research and writing assistance of Laurel A. MacLeod.

Net Neutrality Is Not New

At times the Net Neutrality debate is couched in these terms: “We don’t want government to add regulatory burdens to a free Internet landscape. Less government regulation will allow an unfettered Internet to deliver maximum value to all parties.”

Former presidential candidate Steve Forbes put it this way:

What do the Obama administration, the Federal Communications Commission, a handful of liberal academic elites and Google all have in common?  Answer: a radical plan to regulate the Internet that may totally upend the free market in today’s massive information economy.

Well, I am a free market guy, so on its face this argument resonates with me.  Yet two points must be made about this so-called free market argument.  The first is that access to the Internet is not a free market in the traditional understanding of that term.  In fact, 80% of all access to the Internet is controlled by ten cable and telecommunication companies.  These Internet “gatekeepers” do not have monopoly power, but with the cost of entry to new market participants staggeringly high, they are what might be called an industry oligarchy.  Whatever you want to call it, using the term free market is quite a stretch.

Second is the misleading notion that this “free market” is now under duress by regulators who wish to excessively encumber it with new regulations.  The fact is that the Internet, as we know it today, was birthed and grew to its present stature largely under Net Neutrality rules requiring non-discriminatory treatment of transmitted content.  It was only a few short years ago that the FCC repealed existing Net Neutrality rules at the request of cable and telecommunication companies, who argued that they would not otherwise be able to make future investments in new technologies needed for the Internet infrastructure.

So, when you see this free market argument aggressively advanced as part of this Net Neutrality debate, at the very least you should reach for your saltshaker.  A truly free market it is not.  That does not mean, however, that government regulation is either necessary or desirable.  We are living in a time of unprecedented expansion of government power into almost every area of our existence.  As a matter of principle, such regulation should be resisted unless its public policy value can be indisputably established.

The second division in this debate seems to be between those who create, produce, and/or compile content – the very lifeblood of the Internet – and those who deliver, distribute, or otherwise enable the widespread availability of information – the essential key to the useful application of content.  In this framework, the battle seems to be between Google (as Steve Forbes suggested above) and the cable and telecommunication companies.  In an earlier day, we might have called it a battle between Time Magazine (content producer) and the U.S. Postal Service (content distributor).  Here the battle lines seem largely drawn around self-interest – what a surprise!

The Missing Argument

Forgive the digression, but all of this reminds me of a favorite Wallace & Grommit movie called: The Wrong Trousers.  But in this case it’s not the wrong trousers but the wrong argument.  Or maybe we should not call the other arguments wrong but point out that another critically important argument is largely missing from this public policy debate.

The critical question in any debate over Internet regulation must be this: What will be its impact in either preventing or enabling viewpoint discrimination?

The First Amendment was not crafted to ensure that for-profit companies earn a reasonable return on their investment.  It was written, debated, and ratified because both reason and experience prove that unrestrained government control of ideas and their expression is anathema to a truly free society.

We need not look only to historical examples to bear out this concern.  One need only look at the recent experience of Google in China, or of cell phone companies in Iran, to see how unconstrained governments can use Internet regulation for viewpoint discrimination and criminal prosecution of disfavored elements of society.

Well, that could never happen in America, you say.  Really?  The cultural landscape of the last forty years is littered with statements like that, with each of those “that will never happen” now part of the fabric of a culture seemingly in decline.

As Christian broadcasters and program producers, the future of an unrestricted Internet has significant implications for us.  Increasingly, our ability to reach the broadest audience may be at least partially dependent upon unrestricted access to the Internet.  So we should be very much interested in this debate.  Yet we must not become distracted by economic or utilitarian arguments.

At the end of the day (as we say so often on Capitol Hill), the critical concern for us is in the preservation of an unfettered Internet, so that we can continue to proclaim an unfettered Gospel.