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Steven I. Platt: Federal ‘rules’ hamper democratic governance

The month of April has at best been a month during which events have generated serious questions about our federal government’s ability to protect its citizens, as well as its ability to institutionally respect and respond to the will of the huge majority of the people officials were elected to represent.

April began with the tragedy of Newtown, Conn., appearing to motivate Congress to overcome its own institutional paralysis and pass common-sense legislation to establish universal background checks for people seeking to purchase firearms.

That hope was dashed by the cynicism of the National Rifle Association and its allies in the Senate. The NRA, as President Obama pointedly lamented in a news conference with the families of Newtown’s victims, “willfully lied” about what became known as the “Manchin-Toomey compromise” by saying that it would lead to some sort of “Big Brother Registry of Firearms Owners,” when in fact the express language of the bill prohibited that very practice.

That lie provided the pretext for most of the senators who voted against the Manchin-Toomey compromise amendment to pander to the fears of its opponents, a fear created by their own campaign of disinformation.

That campaign put enough fear into most Republican and some Democratic U.S. senators from western states who perceive their states’ voters to be so estranged from the federal government that they view it as almost an alien force seeking to deprive them of fundamental freedoms by surveillance, the collection of personal information and ultimately the confiscation of their guns.

That fear caused these less-than-courageous senators to shift into “survival political mode” to protect their elective offices from their own angry and, as these Senators see them, irrational constituents. This is the utter nonsense peddled by the leadership of the NRA, which knows it is not true, but uses it to its advantage to support the cause — not of its members so much as its funders, some but not all of whom sell guns for large profits.

This distortion of the facts could be used to intimidate enough senators and probably more than enough members of the House of Representatives to defeat legislation supported by 85 percent to 90 percent of the citizens of this country.

It is the current and correct balance in our society between citizens’ right to privacy, the necessary surveillance of movements and data collection of personal information that enabled law enforcement to capture the Boston Marathon bombers as quickly as they did and to prevent further death and destruction in that city and the surrounding communities.

The word “balance,” however, is not in the vocabulary of either the extreme right or the extreme left. Their failure to understand its virtue in a representative democracy has begun to manifest itself in the dysfunction of some of the important institutions of our federal government and, to a lesser extent, in some of our states.

If balance were sufficiently valued in our politics, state legislatures would cede or delegate the power to reapportion and shape congressional and state legislative districts to independent, nonpartisan commissions whose only charge would be to draw constitutionally sound districts that preserve communities and are coherent and rational geographically and politically.

This would minimize or halt the current practice of designing districts to protect incumbent legislators while maximizing the number and power of the political party in power at the time. It would also cause incumbent office holders and candidates to be more concerned about being responsive to the interests of complete and diverse communities and the informed political center of their districts, rather than the extreme left or right — which currently are concentrated in geographically contorted districts to ensure re-election.

Putting a greater value on balance in politics would also compel our U.S. senators to return the use of the filibuster to its traditional role as a restraint on the untrammeled rule of the majority. That would mean that it would always be a “speaking filibuster,” which would end when those participating got tired of talking or when 60 members voted to stop listening and talking. It would also end the unacknowledged but real obstruction of legislation if it receives any fewer than 60 votes. A majority would pass the bill and/or confirm the appointee or judge unless the Constitution or a specific rule applying to that legislation or appointment required otherwise.

Finally after the U.S. Senate — in the name of needed balance — restored the filibuster to its traditional role and use in that hallowed chamber, the House of Representatives would — in a burst of reciprocity and recognition of the need for balance — abandon what has become known as the “Hastert Rule.”

The Hastert Rule, named after former Republican Speaker of the House of Representatives Dennis Hastert, mandates that no legislation that does not have the support of a majority party in the House of Representatives will be allowed to be brought up for a vote by the full House.

This practice, which is nowhere to be found in the Constitution or any statute, effectively deprives all of the people who voted, as well as elected representatives who are not members of the majority party, of their right to weigh in on legislation that has been filed for consideration by the full House.

This practice has at times been used by both parties. The only rationale articulated for its use is to perpetuate the power of the majority party. Periodically it is abandoned for other overriding political reasons. When it is, good things tend to happen — such as the debt limit being raised to ensure the full faith and credit of the United States or relief provided to victims of natural disasters.

All of these practices are usually defended as “institutional prerogatives.” Clearly, if these institutional prerogatives have any value, it is less than the value of fundamental fairness, i.e. due process, that the exercise of these prerogatives denies to those citizens who voted for their representative without being informed that their right to vote on legislation would be conditional based on their political party registration.

Notwithstanding this, anyone who suggests that these practices be relegated to the dustbin of history runs the risk of being characterized as insensitive to the role of the institution itself. For this reason, this writer’s response to those who argue that these practices are necessary to the preservation of the institutional integrity and powers of the Congress of the United States, is to suggest that those who confuse Congress’s prerogatives with their personal perks may be fatal to our democracy.

“The inability to commit oneself to or believe in anything that transcends one’s private interests leads to a weakening of commitment to community and to self-absorption that is sometimes called narcissism,” wrote the philosopher William M. Sullivan. The alternative, Sullivan said, is a return to “the ideals of loyalty and service based on trust and commitment.”

It is that alternative that we should demand from our elected officials and candidates for public office. The way they can demonstrate that they deserve our trust and loyalty is to end the current practices of legislative redistricting, support modification of the filibuster and abolish the Hastert Rule.

These actions would provide our citizens once again with the confidence that their voices can and will be heard and that public engagement is worth their time and effort. They are way overdue but sadly not forthcoming.

Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, writes a regular column for The Daily Record. He can be reached at info@apursuitofjustice.com.