Shelby and the Constitution

Sen. Richard Shelby is having a surprisingly easy time of it with conservative bloggers who usually are very much opposed (at least verbally) to earmarks and pork projects. With a couple of notable exceptions, even centrist bloggers are remarkably sympathetic toward Sen. Shelby:

Still, while I’m no fan of Shelby — I still harbor ill will over his malicious and slanderous 1986 campaign against Jeremiah Denton — nor of the use of holds as leverage for unrelated matters, I’m inclined to cut him some slack here.

First, he’s up for re-election this year, so bringing millions of dollars home to Alabama during troubled economic times is especially important to him.   Second, at least one of these projects was previously approved — and I don’t know what Shelby gave up to make that deal — under the previous administration.  Third, when we’re incurring federal debt in the trillions of dollars, it’s hard to begrudge a few measly million for what sound like perfectly valid national security-related projects. [Update: Oops -- misread the first figure; obviously, this is real money we're talking about.]

Is the use of a blanket hold a sleazy way to get the job done?  Yup.  But I’m not sure what other leverage Shelby has.  The state is represented by two Republican Senators, neither of whom are named Olympia Snowe.  With a Democratic president and 59 Democratic Senators, he has to use every trick in the book to fight for his state.

I’m not sure which is worse — James Joyner’s cynical tolerance or William Jacobson’s gloating, unhinged rant (which, in addition to being unseemly, is laughably unmoored from reality):

Hissy fit alert. The left-wing blogs are screaming in perfect harmony about bad, bad, bad Richard Shelby of Alabama (R-of course), who put a hold on the entire government.

That’s not quite clear at this point, it appears that Shelby used a longstanding Senate mechanism to put a “hold” on numerous Obama appointees (Shelby says several, the blogosphere says 70 or more).

We must stop this Senate with all its rules and procedures and customs and practices, they say. Government can’t function this way. Shelby has “shut down” the government, OMG.

Except that he hasn’t. Just as there are rules to place a “hold” on nominees, there are rules to remove that hold. The Democrats just don’t want to follow those rules.

I’m not in favor of pork-barrel politics, but it’s all the Democrats have been about this year. Democrats have no standing to cry foul. Which is another way of saying, what goes around comes around.

To get a sense of just how disingenuous is Jacobson’s line about “rules” to place a hold and to remove that hold, let’s take a look at Ezra Klein’s explanation of what a hold actually is (emphasis is mine):

The first thing to understand is that there’s no such procedural move as a “hold.” It’s not something senators have in their special senatorial utility belts. Instead, a “hold” is shorthand for a promise to obstruct all further consideration of a particular piece of Senate business.

The best explanation of how this works came from David Waldman, and I encourage you to read it in full. But here’s the short version: The Senate generally uses unanimous consent agreements to set the rules for a bill or a nomination. A hold, in its simplest form, is a promise to object to unanimous consent.

[...]

The action in question can still come to the floor. But all bets are off. In practice, this means a filibuster of some sort is on. …

People think of the filibuster in terms of defeating a bill. But they don’t think about the power it has to keep the Senate from doing anything else. But that’s the power the hold uses. To break a filibuster, the majority leader has to file for cloture. Then there’s a two-day waiting period before a vote. Then there’s a 30-hour post-vote debate period. And voting on one bill might require breaking multiple filibusters, because the motion to proceed to debate can be filibustered and the amendments can be filibustered and the motion to vote can be filibustered and each filibuster requires the same lengthy workaround. Even if you can crush every one of these filibusters without breaking a sweat, you’ve still just seen a whole week — or maybe much more — of the Senate’s time chewed up.

This is what Jacobson means when he says “there are rules to remove a hold but the Democrats just don’t want to follow those rules.” This is what he defines as the Democrats “not wanting to follow the rules.”

Of course, these are not “rules” so much as they are a nightmare collection of arcane protocols that Republicans follow to the letter (although in fact they don’t have to) for the sole purpose of obstruction.

This is why, as Ezra also explains, holds are usually invoked in a very limited and specific way — to a specific nomination or to a particular bill — and it’s also why Ezra thinks Shelby may have gone too far here (in a strategic sense — it’s obvious he’s gone too far in an ethical sense).

Josh Marshall continues that train of thought:

In this case, we’re not dealing with a stand on partisanship or ideology or simple political shiv play which I guess can each be respected in their own place. This is more like just a stick up. Gimme my money and I’ll give you your Senate back! Worse than a squeegee man and not much better than a bank robber, Shelby is shutting down the president’s ability to appoint anyone to anything until he gets his way. In a sense Shelby’s gambit is little different from what countless other senators of both parties have done in the past, using the senate rules to get the White House’s attention to pry some money free from the federal government. But the scale is unheard and the moment is different. The only mystery about this one is which is more outrageous — Shelby’s hold or the fact that the rest of the senators of both parties allow it.

Perhaps, like so many other times, this will be today’s outrage that is the new normal by tomorrow. But this are volatile times. And I wonder if this isn’t the live wire in the gasoline.

Marcy Wheeler digs into the background of Shelby’s earmarks and finds that they may not even be his to claim:

The key issue is that Shelby wants the Air Force to tweak an RFP for refueling tankers so that Airbus (partnered with Northrup Grumman) would win the bid again over Boeing. The contract had been awarded in 2008, but the GAO found that the Air Force had erred in calculating the award. After the Air Force wrote a new RFP in preparation to rebid the contract, Airbus calculated that it would not win the new bid, and started complaining. Now, Airbus is threatening to withdraw from the competition unless the specs in the RFP are revised.

Essentially, then, Shelby’s threat is primarily about gaming this bidding process to make sure Airbus–and not Boeing–wins the contract (there’s a smaller program he’s complaining about, too, but this is the truly huge potential bounty for his state).

Finally, do not neglect to read Jack Balkin’s explication of the constitutional crisis brewing as a result of the extremities to which the U.S. Senate has taken “the political rules of the game” (as opposed to constitutionally mandated procedures). I will quote a part of what Balkin says, but I strongly urge everyone to read the whole thing:

Apparently a blanket hold of this sort has never been attempted before, but in effect all Shelby has done is add together a series of individual holds.

This … should be a wake up call to President Obama that he faces a political and legal crisis of the first order. The Senate’s rules, which are not required by the Constitution, need to be reformed immediately or else day-to-day governance threatens to become impossible.

This crisis is not yet technically a constitutional crisis, because the Senate’s rules are not constitutionally required. But if the President does nothing, and argues that there is nothing he can do to persuade the Senate to change its mind because the Senate gets to determine its own rules under Article I, section 5, we face what Sandy Levinson and I have called a Type Two constitutional crisis– in which acceptance of the political rules of the game sends the country over a cliff.

Article IV of the Constitution requires that the United States guarantee a republican form of government– “republican” as in representative and subject to majority rule, not “republican” as in perpetually controlled by a ideologically cohesive minority in the Republican Party.