A report at TPM claims that:
Senate Minority Leader Mitch McConnell (R-KY) on Tuesday starkly warned Majority Leader Harry Reid (D-NV) not to eliminate the filibuster on presidential nominations, threatening to end the 60-vote threshold for everything, including bills, if he becomes the majority leader.
“There not a doubt in my mind that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything,” McConnell said on the floor.
With at least half a dozen key judicial and cabinet nominees pending, all of whom Republicans have problems with, Reid has threatened to invoke the so-called nuclear option to change the rules of the Senate and eliminate the filibuster on nominations — but not anything else.
Backed up by Sen. Lamar Alexander (R-TN), who echoed his warnings in a floor colloquy Tuesday, McConnell said his hypothetical majority would take it a step further.
And so the Senate is now so dysfunctional that only mutually assured destruction prevents the parties from going nuclear. Of course, this isn't the first time such a threat has been issued. To the contrary, when their roles were reversed, then Minority Leader Reid made precisely the same threat, as David Law and Larry Solum explained back in 2006 (15 J. Contemp. Legal Issues 51):
Yet another possible external cost of the nuclear option for individual Senators could result if the nuclear option were to trigger the senatorial equivalent of “mutually assured destruction.” Senate Minority Leader Reid has already vowed to make the GOP “rue the day” that it tampers with the filibuster, and to “screw things up” throughout the Senate in retaliation. If Senator Reid makes good on his word, Republican senators may find themselves in a Never-Never Land of unending quorum calls, refusal to consent to limits upon debate or amendment, extended debate on whether bills should be debated at all, inexhaustible streams of non-germane amendments, committee paralysis, and whatever other parliamentary mayhem the party of Robert Byrd can muster.
This prospect is a very real one. As I noted back when the Gang of 14 deal saved the filibuster:
Proponents of the nuclear option claim to believe that abolishing the filibuster could be limited to judicial nominations. It's a coin flip as to whether this is naive or disingenuous. It's a slippery slope to abolishing the filibuster as to Presidential nominations or even legislation. Would the GOP be tempted to abolish the filibuster if necessary to put John Bolton at the UN? Or to ram through Social Security reform? Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation.
Today, of course, it is the Democrats who need to take that same prospect into account.
One good thing (for those of us who are fans of the filibuster, as I am) is that the question may not be resolved by the leadership. As Law and Solum explain, going nuclear could have very bad consequences for back benchers:
[Minority party disruptions] might, in turn, trigger even harsher procedural countermeasures by the majority, which could employ the nuclear option to pass rules that would eliminate the need for unanimous consent and centralize power in the Senate leadership, along the present lines of the House of Representatives. But such structural changes might curtail the rewards associated with non-leadership positions in the Senate--including, for example, various powers of patronage currently associated with membership in the Senate. Republican and Democratic senators alike may balk at the erosion of the prized prerogatives that render individual members of the Senate so much more powerful than their counterparts in the House.
I'd like you to loan me $1 million to buy a summer home in Santa Barbara and then forgive it. After all, if NYU can do it, why can't you?
Follow one of Fire Island’s quaint footpaths away from the ferry dock, past modest cottages and better-appointed vacation homes, to an elegant modern beach house that extends across three lots. A composition in bold, unadorned planes, it has a perimeter of green and two separate entrances, each outfitted with the long ramps that are the local custom.
ts most interesting feature, however, is not architectural, but financial. The house, which is owned by John Sexton, the president of New York University, was bought with a $600,000 loan from an N.Y.U. foundation that eventually grew to be $1 million, according to Suffolk County land records. It is one of a number of loans that N.Y.U. has made to executives and star professors for expensive vacation homes in areas like East Hampton, Fire Island and Litchfield County, Conn., in what educational experts call a bold new frontier for lavish university compensation. ...
Mortgage loans to Jacob Lew, a former N.Y.U. executive vice president, part of which was eventually forgiven, became an issue during Mr. Lew’s confirmation hearings as treasury secretary this year.
UCLA FA blog reports:
Inside Higher Ed today carries an article about surveys of faculty who say they don't plan to retire at the "normal" age or maybe ever. The work-til-you-drop response is attributed to such motivations as wanting to be intellectually active but also importantly to concerns about having sufficient funds and health insurance to retire. When UC was considering changing its retirement plan - it created a two-tier program - it retained the defined benefit approach rather than switch to a defined contribution approach. Many faculty in the U.S. are under TIAA-CREF or some similar defined contribution program which means that they face the danger of outliving their savings. Retiree health care is also not necessarily provided.
UC retained its basic defined benefit model in part to encourage faculty renewal. Many years ago, before federal law changed, universities - including UC - had mandatory retirement ages. Once that policy was made illegal, only the defined benefit system provides an incentive to retire. Under defined benefit, the retiree can't outlive his or her savings. And long service employees essentially end up working for nothing if they continue so the system incentivizes "on time" retirement.
Before you assume that the UC will be an exception to the rule, in which us boomer faculty will gracefully step aside to allow the younger generations to take our place, notice that defined benefit only incentivizes "on time" retirement for folks who started in the UC system. This is so, because your UC retirement is based, in part, on the number of years of service credit you have accrued. Those of us who joined the UC system mid-career simply will not have enough service credit to fund a decent retirement at normal retirement ages. So I, for one, plan to cling to my job no matter how many young whippersnappers are clamoring for it.
Very interesting post by Lawrence West on "attorneys as award-seeking SEC whistleblowers":
This is a primer on attorneys as award-seeking SEC whistleblowers. It digests the relevant law and explains how it applies in real situations. That law includes the SEC attorney conduct and whistleblower award rules and each state’s ethics rules applicable to attorney disclosure. Fully assessing a particular situation will often require referring to the relevant rules for each state that might come into play for a particular lawyer in a particular situation. We therefore include information about choice of law and a chart summarizing the relevant rules in each of 51 US jurisdictions.
In the prior post, I noted that former SEC inspector general David Weber who was fired for blowing the whistle on corruption and sexual shenanigans at the agency has been vindicated by a very favorable settlement of his claims. Which is a good thing. we want people to blow the whistle on illegal and ethical conduct. Which brings me to WW's post on the campaign to smear NSA whistle blower Edward Snowden:
One need not believe that Mr Snowden is a hero to see that the campaign to smear him is in large part a campaign of pre-emption against future leakers. The prestige and infamy that ultimately attach to Mr Snowden will surely affect the supply of future leaks. The rush to lionise and belittle Mr Snowden is a rush to get the jump in the fight to determine the level of status that whistle-blowers will enjoy, or suffer, in our culture.
The outcome of this fight matters, because, as economists like to say, incentives matter. But few incentives are pecuniary. Humanity operates primarily within an economy of esteem, and one basic function of any human society is to assign status, to distribute honour and shame. That pundits hustled to pass judgment on Mr Snowden is no surprise, but the way it has been done is illuminating, and depressing. Another, better, society might heap socially fatal shame upon David Brooks for his reckless, smug psychologising of Mr Snowden. Sadly, this sort of inane, moralising, diagnostic speculation falls well within the bounds of accepted American discourse, which reflects rather poorly on us. That we do not readily see that it reflects poorly on us also reflects poorly on us. The questions Americans do and do not find sensible to raise also provide grounds for sorrow. It makes sense to Americans to ask, "What kind of person would defy authority in this way?" But somehow it does not make sense to ask, "What kind of person seeks to join the special forces of a country known to conduct unjust wars?" or "What kind of person helps the state conduct its business outside the scope of public deliberation and democratic authority, and does not seek to expose it?" ...
The attack on Mr Snowden's reputation is in no small part a rearguard action to keep America's spies and generals beyond the reach of suspicion, to maintain their relative immunity from serious democratic scrutiny so that that the public will continue complacently to trust them when they say, in so many words, "Trust us...or else". But it is democratic affirmation, not uniforms and security clearances, that makes state power legitimate. When the state acts without proper democratic authority, it acts as a rogue operation—as just another band of thugs with money and guns and a dangerous sense of self-righteousness. Whether the NSA's monitoring programmes are actually legal and effective may be morepressing questions than whether Mr Snowden deserves our esteem. But it became possible to address those questions openly only because Mr Snowden chose to speak up. If we wish to keep similarly pressing policy questions available for public examination, we must defend the honour of whistleblowers like Edward Snowden.
As I blogged six months ago, SEC Assistant Inspector General David Weber filed a $20 million lawsuit alleging he was fired for being a whistleblower (you may recall the complaint was full of juicy details, which may - or may not - be true). Last week, it was reported that Weber received a settlement of $580k for the lawsuit - as well as his job back and his record cleansed. That is pretty big number for a government settlement. Learn more in "Sex, Lies, Stupidity, Oh My!!: SEC Whistleblower David Weber Vindicated, Receives Huge $ettlement" (and this Reuters article and Washington Post article).
As Roger Clegg observes:
The Center for Equal Opportunity and the Pacific Legal Foundation had urged the Court to grant review in this case, as discussed here, and we’re glad that the Court did so today. It presents the issue — never resolved by the Court — whether a “disparate impact” cause of action may be filed under the Fair Housing Act.
Such a cause of action alleges “discrimination” based on statistical imbalances, notwithstanding the fact that the challenged practice is nondiscriminatory by its terms, in its intent, and in its application. So, for example, the refusal to rent to convicted felons, or to sell homes to people with poor work histories, or to rent or sell to people with bad credit ratings all can be challenged if there is a disproportionate effect on this or that group, and then the defendant must prove some degree of “necessity” for the practice.
The narrow issue presented is whether disparate impact claims are cognizable under the Fair Housing Act. Unlike employment discrimination, for example, federal housing statutes do not explicitly embrace disparate impact. Even so, this is going to be a very closely watched case by business, as the disparate impact theory significantly increases their liability exposure under the various civil rights laws.
If progressives had their way, the ACLU's latest challenge to the NSA's domestic surveillance would easily be dismissed. ACLU v Clapper, filed in the wake of the Snowden revelations, is based on the ACLU's First and Fourth Amendment rights, which, according to progressives, ACLU should not possess. It is, after all, a corporation, and constitutional amendments aggressively promoted by progressives would limit constitutional rights to "natural persons."
"The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities," the popular People's Rights Amendment declares.
I have repeatedly stressed the dangers of an amendment limiting constitutional rights to "natural persons," noting that it would deprive every non-profit, citizens advocacy group as well as small and large businesses of both First and Fourth Amendment rights, exposing them to warrantless searches and outright censorship of political speech. ACLU v Clapper makes clear that these threats to civil liberty are not theoretical.
The ACLU (including its New York affiliate) is not just the lawyer but the plaintiff in the latest Clapper case. As the complaint recounts, ACLU and ACLU Foundation are subscribers to Verizon Business Network Services, "whose communications have already been monitored by the government under the VBNS order and whose communications continue to be monitored under that order now ... Plaintiffs work often depends on their ability to keep even the facts of their discussion with certain individuals confidential."
This column prompted this letter to the editor by yours truly:
One has gotten used to the far left referring to the "Taliban wing" of the GOP, but it was most disheartening to see that phrase crop up in Lexington's 6/15 column. It was dishonest, partisan, and unprofessional. I think the right wing of the GOP often goes to extremes, but even so I would never compare them to an outfit that blew up World Heritage sites, executed people in public, protected Osama bin Laden while he planned 9/11, deprived their people of UN food relief aid, and killed tens of thousands of their own people. That you would speaks volumes about how standards have fallen at the Economist.
Eric Posner on his proposal that corporations adopt square root voting:
Imagine that a corporation holds a shareholder vote on a project like a merger, and, under the corporation’s bylaws, each shareholder can cast a number of votes equal to the square root of the number of shares that he holds. This might seem like a gimmick, but it actually provides a natural, smooth form of minority shareholder protection without the external intervention of the courts. In fact, under reasonable conditions square root voting (SRV) ensures that the project is approved if and only if it maximizes the value of the firm and thus achieves the efficiency goals of minority shareholder protection without the messy legal procedures that usually accompany them. ...
A highly stylized hypothetical follows to supposedly prove the point. But frankly, it doesn't really matter. This is one of those classic ivory tower ideas that has no -- as in, zero, nada, zilch -- chance of ever making it into any corporation code in any state of the United States.