A Citizen's Guide to Indiana

Festivus is approaching fast, and, rather than waiting for December 23, I thought I’d get one off my chest. Various discussions have reminded me that I harbor a good deal of resentment from my youth as a smart kid in a community or social setting where I did not feel like intellectual accomplishments were particularly valued. My parents definitely valued education, and the community at least nominally paid lip service to the value of good grades. McDonalds even gave me a free hamburger for getting “A”s. (Well done, kid. You’d better get good grades and get a good job to pay for the insulin you’ll need from the diabetes our food is going to give you!)

But, when I see someone struggling in life because they didn’t get a good education; there is at least some part of me that sees that person as the 12 year old asshole classmates of mine who teased me relentlessly for using big words. Eventually, I learned to dumb down my speaking patterns and navigate middle school social circles, but the message was clear. A guy who can throw a spiral 80 yards is a hero. A guy who can use language with precision is an object of scorn. That message is reinforced when the discussion at family gatherings is more apt to be the latest high school basketball phenom than anything to do with intellectual achievement.

Sure, this is all decades old water under the bridge, but I’d hazard a guess that long nursed, adolescent grievances are a more important component of policy decisions than any of us would care to believe.

One issue that raised this in my mind was a discussion online surrounding the forthcoming Rise Above the Mark film developed by West Lafayette School Corporation. The goal of the film is (at least to my understanding) to change the approach to education reform.

“We’re using the wrong kinds of reforms,” [WLSC Superintendent Rocky] Killion said. “What it’s doing is driving everyone down to mediocrity as opposed to lifting up and allowing us to go further.

The Twitter discussion had one friend quip that the message of the film would be a single card that said, “Don’t let poor people into your school.” I responded that this wasn’t entirely the situation with West Lafayette schools. For example, grad students aren’t wealthy, but if you stack your schools with parents who value education, your school is bound to do well. Another friend noted the importance of distinguishing between wealth and class. While grad students aren’t wealthy, they are of the desirable class. Which leads me to wonder what the roots are of these non-wealth based class distinctions.

Growing up, my folks did not much share details about our financial condition, so I don’t know exactly how much wealth we did or didn’t have. I’d say we were pretty well in the middle of the middle class during the bulk of my childhood. My impression is that my step-dad rose up the ranks at his company and ended up being pretty successful; but during the days when there were five of us kids in the house, I can’t imagine there was a lot of money flowing through. Not that we felt particularly deprived or anything; but, while we didn’t start the day hungry by any means, we also weren’t wealthy by any stretch of the imagination.

Even if I didn’t have a distinct advantage of wealth, however, my family was lousy with college degrees. Mom had a master’s degree in education, I believe. Dad had a bachelor’s degree. My father had a law degree. His father at least went to IU, and I know his great uncle was a lawyer who help compile the Indianapolis City Code back in the early 20th century. Grandpa (on Mom’s side) was a doctor of osteopathy. I think Grandma had a masters in fine arts. I didn’t realize that this sort of thing wasn’t necessarily common until later. Even most of my close friends growing up came from families with college educated parents. And it’s not just education. My speech patterns reflect the prevailing upper class patterns. As a young kid, I was taught little things like which side of the plate the fork goes on and where the napkin goes. Just by personal preferences, I can be pretty uncouth at times; but, when the situation demands it, I’ve been given the tools to navigate the upper social classes. And, of course, I’m passing all of these things along to my own kids.

Which brings me back to West Lafayette Schools. Some of this class stuff is fairly incidental. Cole is awfully fastidious (see what I did there?) about his table settings, but WLCS isn’t going to struggle if Harper puts her spork on the wrong side of her school lunch. However, without their teachers doing a thing, my kids came in with a pretty solid base line education; they came in knowing that education is important; they have been conditioned to be reasonably respectful to authority figures such as their teachers; and they just honestly enjoy school. Stack your school with kids like that, and your school will excel, almost regardless of what kind of teachers you have in there. Stack your school with kids who will make life tough on another kid for using a five syllable word, and the situation will get choppier.

However, soaking in the kind of class privilege that I have does make it hard for me to understand at a visceral level what’s so hard about infusing your kids with a value for education. Every parent has to know it’s important. But, I guess if you haven’t internalized that fact, your kids are going to hear you saying that school is important once in awhile whereas they will see you if you are spending much of your free time watching sporting events and not reading a book. Nominal lip service to the idea just isn’t enough.

See also:

Indiana’s revenue in November fell short of projections, so Gov. Mike Pence said today that state agencies and higher education funding will be cut back[.]

The Indiana Law Blog posted an entry on an AP article on a 7th Circuit Oral Argument over a Wisconsin law that requires doctors to have admission privileges at a hospital before the doctor is allowed to perform an abortion. Audio of the argument is here (mp3). You can’t always tell what a judge really thinks from the questions he or she asks, but in this case, the judges, Hamilton and Posner in particular, did not seem to be buying the Wisconsin Deputy Attorney General’s argument that the hospital admitting privilege requirements specifically for abortion was motivated by a concern for women’s medical well being.

At times appearing exasperated, Posner repeatedly interrupted Lennington, asking why lawmakers — if it’s true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries.

“Why did they start with abortion clinics? Because it begins with the letter ‘A’?” Posner asked.

Lennington answered, “I don’t have a conjecture (about why).” Later, in response to similar questions, Lennington said it was the prerogative of legislators to act as they did.

Posner also cited figures that just .3 percent of abortions have medical complications. Asked if there were records of women dying in Wisconsin after abortions, Lennington said he didn’t know.

At that point, Posner said about the law, “It doesn’t sound reasonable. It sounds irrational.”

Having been on the receiving end of Judge Posner’s questioning once upon a time and having once been employed to do the bidding of a state legislature regardless of my personal opinions, I definitely sympathize with the deputy attorney general in this case.

The Indiana Law Blog noted the similarity between the challenged Wisconsin law and the admitting privilege requirements of IC 16-34-2-4.5 and also referenced this Wisconsin case as potentially having an impact on the Southern District of Indiana’s injunction on enforcement of the new law requiring Planned Parenthood’s facility in Lafayette which provides medication abortions to meet the same facility requirements as those providing surgical abortions.

So, the Senate Democrats deployed the “Nuclear Option” — dubbed the “Constitutional Option” (pdf) by Senate Republicans in 2004 and 2005 when they were in the majority.

Cloture filings since 1917

As I understand it, they changed the Senate rules or, if you prefer, interpreted the Senate Rules to preclude use of a filibuster to delay votes on federal judicial nominees other than Supreme Court nominees. I don’t even pretend to understand the arcana of Senate procedure; but, it seems difficult to believe that, having used this tactic once, a sufficiently motivated majority would not be able to break a filibuster in a similar manner for future issues. But, maybe there is something about non-Supreme Court judicial nominees that makes theirs a special case.

The linked article suggests that the filibuster was created almost by oversight in 1806 by the Vice President Aaron Burr who eliminated a procedural tool known as the “previous question motion.” Burr found that it was of no use, had not been deployed, and its purposes would be satisfied by the “question of indefinite postponement.” The Senate got rid of the “previous question motion” in 1806 but otherwise did not impose a device by which debate might be restricted. This issue then lay dormant until the late 1830s when the battles over the Bank of the United States were raging. In 1837, Andrew Jackson had been censured for removing federal deposits from the Bank of the United States. The Senate censured him for that action and recorded the censure in the Senate Journals. A group of pro-Jacksonian Senators were relentless in their efforts to remove the censure. Eventually, a group of them resolved to talk and talk until they got their way. “It was evident that consumption of time, delay and adjournment, was their plan.” But this didn’t last long. The majority gave way and went along with them, voting to remove the censure by a vote of 24-19.

The issue lingered until 1917 with the Senate having eliminated the “previous question rule” but not having adopted a formal cloture procedure. At that time, eleven isolationists opposed a bill proposed by President Wilson to arm American merchant ships to protect them against Germans who were proposing to engage in unrestricted submarine warfare in the North Atlantic. The eleven Senators successfully prevented the bill from a vote until expiration of that session of Congress. President Wilson fumed, “the Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” This paved the way for adoption of a cloture rule by the Senate. The premise used to prevent filibustering adoption of an anti-filibustering rule was that each new Congress was free to adopt its own rules of procedure and was not bound to the rules adopted by a previous Congress. Prior to adoption of the new rules by the new Congress, the body was bound by traditional parliamentary rules which included the “previous question motion” — a device that allowed the majority to cut off debate. Ultimately the Senate did not formally embrace that “new body” argument, but it was the impetus for adoption of a formal cloture rule in 1917 that allowed debate to be cut off by agreement of 2/3 of the body. The cloture rule was broadened in 1959 after another debate which avoided the “new body” interpretation and, instead, proceeded under the premise that Senate rules persisted from session to session. In 1975, after a great deal of effort, the cloture rule was eased from 2/3 to 3/5.

The authors of the Harvard Journal & Public Policy article linked above suggest a second way in which the constitutional/nuclear option can be exercised mid-stream:

The Senate’s constitutional rule making power can be exercised a second way: A simple majority could set a new Senate precedent that would alter the operation of a Standing Rule while leaving its text untouched. This exercise of the constitutional power could be applied to alter the interpretation and application of any Standing Rule, including Rule XXII’s requirement of a super-majority for cloture. This second form of the constitutional option also might be used to facilitate a majority’s efforts to exercise the first form: Majoritarian precedents could smooth the path toward a majority’s enactment of formal rules changes.

. . .

First, a Senator would raise a point of order to close debate. For example, a Senator could state, “Debate on this matter having proceeded for ‘x’ hours, I make the point of order that any further

debate is dilatory and not in order.” Under Senate Rule XX, points of order not referred to the Senate are not debatable except at the sufferance of the Presiding Officer,

although debate may generally be had on appeals. If the Presiding Officer sustained the point of order, he would set a new, binding Senate precedent allowing

Senators to cut off debate. That, however, would not end the matter. The minority could (and likely would) appeal the Presiding Officer’s ruling. In a final step, the majority could move to table the appeal. The tabling motion would be non-debatable and subject to immediate vote. If a simple majority voted to table the appeal, the Senate would affirm the Presiding Officer’s ruling and thus allow Senators to cut off debate under the terms of the point of order.

Wading through the minutiae that gave us and has sustained the filibuster all of these years reinforces the point that the filibuster isn’t something necessarily envisioned by the Founders when they set up the government.

However, its long tradition has formed the fabric of how Congress does business, and removing or weakening the option will likely have unforeseen consequences. The 180 degree shift in rhetoric from one part to the other between 2004-2005 and the present is both predictable and remarkable. The Democrats were waxing poetic about the intrinsic value of the filibuster to the legal fabric of our Republic. The Republicans were bemoaning that confirmation of judicial nominations being delayed by the intransigence of a minority being counter to the intent of the Founders. A look at the history of the use of the filibuster shows a marked uptick over the years. It has been at an all time high during the Obama years. With a Democratic majority in the Senate and a Democratic President, the Democratic fans of the filibuster are now very concerned that the Will of the People be done while the Republican majoritarians of the mid-2000s have discovered that the filibuster is an indispensable bulwark against tyranny. The Democrats will respond that the Republicans had taken use of the filibuster beyond all tolerable levels; and there was simply no other option. The Republicans will claim that they filibustered so much because Democratic proposals and nominations were simply intolerable and heavy handed.

I think it’s a mixed bag all around. Sooner or later, the Democrats will have cause to be unhappy that they are unable to stop a future Republican majority; and, upon taking the majority, the Republicans will find that rule by majority isn’t so tyrannical after all. The ball will bounce back and forth, and we’ll probably continue to muddle along more or less.