WIUM Tristates Public Radio

Bill Knight - March 4

Macomb, IL – If Americans' civic beliefs include "the majority rules" and "government should represent its people," then why does the nation endure the U.S. Senate? Already, the Senate is set up so each state gets two seats, which gives tiny states the same influence as large ones. With the filibuster, it means that the country's 20 smallest states - with about 1/10 of the U.S. population - could block any bill.

The Senate is continuing to use and abuse the archaic-yet-modernized tool of minority tyranny like it was some savvy instrument instead of a nutty weapon of mass delusion. For 35 years, the Senate has increasingly exploited this peculiar device, whether Democrats or Republicans were in power.

Seventy-seven years ago this month, Franklin D. Roosevelt was inaugurated amid the Great Depression and shepherded through Congress the National Labor Relations Act, which recognizes workers' "right to organize and bargain collectively through representatives of their own choosing."

This winter, the federal agency assigned the responsibility of enforcing that law was stymied from doing its work. President Obama nominated two Democrats and a Republican to the National Labor Relations Board (NLRB), but despite receiving 52 votes, the first nominee - Service Employees International Union lawyer Craig Becker - was locked out by a filibuster, which requires 60 votes to break.

Obama said, "I respect the Senate's role to advise and consent, but for months, qualified, non-controversial nominees for critical positions in government have been held up despite having overwhelming support."

Democratic labor lawyer Mark Pearce and Republican Senate staffer Brian Hayes were Obama's other two NLRB nominees. They're on hold, along with dozens of others.

At the center of the lockout of NLRB work is the filibuster - plus one man and a phantom.

The filibuster is the rule that lets a Senator end debate unless a supermajority votes to override the filibuster and permit an up or down vote on the measure.

The one-man roadblock on nominees has been U.S. Sen. Richard Shelby (R-Ala.), who put a "hold" on 70 of Obama's nominees, virtually halting action before agreeing on February 8 to release some of them.

The "phantom" is a sleight-of-hand tried by the remaining NLRB members, Republican Peter Schaumber and Democrat Wilma Liebman, who've issued 2-0 rulings by pretending a "phantom" NLRB member exists, giving them a quorum. A court challenge stopped that attempt to conduct business.

The five-member NLRB - assigned to decide disputes brought by either employers or unions concerning federal labor law - has been limited to two members for two years - since Dec. 31, 2007.

Becker, a Chicago native and law professor, has been criticized for being pro-labor, but he told a February hearing that he would "respect the will of Congress."

Illinois' U.S. Sen. Dick Durbin defended Becker, saying, "His job is to basically interpret the law as written and to implement the law as Congress has passed it. He said repeatedly, if confirmed, he will apply the law fairly and impartially."

Larry Cohen, president of the Communications Workers of America, urged Obama to make the appointments during a Congressional recess, a permissible action taken by previous presidents, Republican and Democrat.

Cohen said, "We need to reset our focus for the Easter recess and mount an even larger campaign" to fill NLRB vacancies. "We should make it clear that thousands of fired workers can get no justice, and hundreds of thousands have no bargaining and organizing rights as every critical case at the national level is frozen."

The idea of a filibuster isn't in the Constitution nor was provided by the Founders. The filibuster or cloture scheme, Rule 22, was amended in 1975, when the number of votes needed to break filibusters was cut from 67 to 60, but the requirement for filibustering Senators to actually speak was dropped, so Senators now seemingly wave a magic filibuster wand over legislation they want to stall and that's that.

So 40 obstructionists can close down Senate action unless a "super majority" of 60 Senators votes to end the filibuster. Founder Alexander Hamilton dismissed the super majority idea, writing in Federalist Paper 75, "The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder."

NLRB chair Wilma Liebman, a Democrat, put it another way in a Feb. 17 speech at Washington University School of Law in St. Louis. The current deadlock mounted by the Republican "Party of No," she said, is "emblematic of political paralysis."