Catch XXII

Dear Children:
This is going to be difficult. It is difficult because life is difficult, the exercise of power is difficult and accepting the consequences of both is difficult. One should hasten to add that whatever subtracts from life is also difficult and whatever shrinks from power imposes difficulty.

For a certain generation, nowhere was this little maxim better embodied than in a work of fiction called Catch-22 by Joseph Heller. Published in 1961, the book explores the reach of bureaucratic power over the individual and the reach of power of one individual over another. Our hero, Captain Yossarian, is a bomber pilot operating out of a backwater during World War II. He is approaching his promised 40-mission limit and wants out. Cynical, inept and foolish superior officers along with minor functionaries conspire to prevent it. Catch-22 is the pretext:

There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he were sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

Eventually, we come to learn that Catch-22 is notional. Cruelly, it makes no difference. Whether the catch exists is irrelevant. It is so widely believed to exist and quoted often enough to have the force of law, if not truth.

Then there’s Senate Rule XXII. You may remember we discussed this matter before in the December 5th post, “Chicken Crap”.  We looked at the filibuster.

As the 112th Congress constitutes itself on January 3, 2011 and only on January 3rd, Rule 22 may come up under a parliamentary mechanism called The Constitutional Option. (If The Constitutional Option is aimed at the minority, it’s referred to as The Nuclear Option.) At the risk of simplifying too much, the Senate can change its rules on the first day of the session employing a simple majority required for passage; or so goes the theory. The mechanism would be for the purpose of amending the Cloture Rule -- limiting the length of a filibuster or force a filibustering senator to truly stand in the well of the Senate in person or some combination of ingredients.

While we contemplate whether the Democrats can pull it off and eventually pass constitutional muster, we should consider the question of whether they ought to try.

The text of the Constitution requires a two-thirds majority in the Senate for confirming treaties (Article 2, Section 2), expelling one of its members (Article 1, Section 5), and concurring in the proposal of Constitutional Amendments (Article 5). In all other matters, the Constitution gives the Senate the power to make its own rules (Article 1, Section 5). Starting with the first Senate in 1789, a simple majority could move to bring any matter to a vote. In 1806 a motion to call the question was eliminated. The filibuster became possible. A single Senator could now block a vote, 100% support was required to bring the question to a vote. In 1917 cloture was introduced requiring a two-thirds majority of those present to end debate. Cloture was amended in 1975 requiring three-fifths of the entire Senate.

Supporters of the right to filibuster argue that the Senate has a long tradition of requiring broad support to do business, due in part to the threat of the filibuster thus protecting the minority.

On the other hand, the Senate is not a seriously representative body. The people of California have the same number of votes as do the people of South Dakota. The Senate is designed to cool the passions of the majority as well as queer the will of the occasional nutcase. So, when we say minority, we mean a minority of senators who might all be from small states or all be from more populous states, southern states, manufacturing states … you get the idea.

Finally, when they have been in the minority, both parties have abused the filibuster. Particularly in the appointment of judges, the minority rises in purple outrage. Federal courts stay short-handed for years.
Rather than a rule change, a culture change might be in order. That’s the hard part. Just because it’s possible to employ a weapon hardly gives license to use it. The potential for more conflict and more resentment -- however it plays out -- is very, very high.

We ought to favor an arrangement where the minority, after having aired their objections fully, accepts the will of the majority. Under this arrangement, it is up to the people to decide come the next election. No rule can impose the adoption of a principle.

For no one should rule out the capacity of the mean-spirited to abuse any rule, game any system or confuse childish petulance with healthy debate. After all, that is what we have experienced: an undignified muddle unworthy of confidence.

There is no catch-22.

I’m just sayin’,
Poppy
www.poppylbs.blogspot.com