Eugene Volokh's Blog, page 2693
October 12, 2011
Oral Argument in Florence v. Board of Chosen Freeholders of the County of Burlington
I attended the oral argument this morning in Florence v. Board of Chosen Freeholders of the County of Burlington, a case on whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses. To my mind, the case is really a follow-up to Atwater v. City of Lago Vista, 532 U.S. 318 (2001), in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses — in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?
The arguments in Florence largely resembled the arguments in Atwater. The question is, does it work to create a Fourth Amendment rule that specially treats the relatively rare case of arrestees for minor crimes and those that aren't dangerous or likely to be bringing in contraband differently than the run of criminal cases? Or should the Court conclude that the Fourth Amendment leaves this relatively rare case to the discretion of the government and perhaps the political process?
In Florence, the problem for the challlengers to the government's action is that everyone concedes that there are some circumstances in which the government needs to conduct some sort of inspection of arrestees for contraband as they enter a prison. The challengers, representing the petitioner Florence, therefore had the hard line-drawing problem: How to distinguish the different kinds of possible inspections, and how to say when different inspections are permitted?
As I understood the oral argument, the Petitioner, represented by Tom Goldstein, took the view that the government can always watch arrestees from 10 feet away or a similar distance while the arrestees are showering before entering the jail. If the government wants to inspect the arrestees more closely, however, such as at a close arms-length distance, then reasonable suspicion is required. According to Goldstein, reasonable suspicion should always exist when the arrest is for a major offense. In contrast, case-by-case reasonable suspicion should be required for arrests for minor crimes. The Respondents, represented by Carter Phillips, took the view that no line drawing was required: As long as the inspection was only visual inspection of the outside of a person's body, then the Fourth Amendment did not apply at all upon entering a prison.
My sense of the argument was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the Petitioner advocated. It was just too hard to distinguish a 10-foot inspection from a 5-foot inspection from a 2-foot inspection, or to distinguish a major crime from a minor one. So I would guess the votes will be there for a conclusion that no line-drawing as required, as the government has the discretion to do a close visual inspection of all arrestees when they enter jail.
UPDATE: The transcript has now been released, and is available here. Also, I have an expanded version this post that is up at SCOTUSblog here.
Day 2—Judicial Abdication Is a Bigger Problem Than Judicial Activism
As I noted yesterday, the Institute for Justice created the Center for Judicial Engagement in response to our belief that America has more government today than the Constitution authorizes and that courts are systematically failing to enforce constitutional limits on government power. A significant factor in that underenforcement may well be the drumbeat accusations of "judicial activism" emanating from the right and the left, often unconnected with any specific court ruling.
Broadly speaking, judges can make two types of errors in exercising judicial review: incorrectly forbidding that which the Constitution permits, and incorrectly approving that which the Constitution forbids. The debate over judicial engagement versus judicial restraint is largely about which direction courts should err in.
Those who favor restraint often accuse the courts of "judicial activism," a nebulous epithet that packs a powerful rhetorical punch with very little content. For example, Arlen Specter famously claimed the Supreme Court "has been eating Congress's lunch by invalidating legislation with judicial activism." But he identified no specific cases and appears instead to have been making an essentially quantitative assertion: namely, that the Supreme Court inappropriately strikes down legislation with such frequency as to impair the legitimate policymaking efforts of Congress.
The Institute for Justice's Center for Judicial Engagement sought to evaluate that claim by comparing the total number of laws and regulations enacted over the past several decades with the total number struck down by the Supreme Court. As documented in the "Government Unchecked" study about which Jonathan Adler posted here two weeks ago, the data do not support Senator Specter's claim. To the contrary, the Supreme Court very rarely invalidates legislation or agency regulations: about 0.6 percent of all federal laws are struck down; 0.5 percent of federal regulations; and 0.05 percent of all state laws — altogether the Court invalidates about three out of every 5,000 laws passed by Congress and state legislatures every year.
As Professor Adler and others pointed out, it is difficult to objectively measure the Supreme Court's activity in this fashion. But the point of the Government Unchecked report was not to establish an affirmative position regarding so-called "judicial activism"; rather, the point was to evaluate the assertion, advanced by Senator Specter and others, that the Supreme Court is systematically thwarting Congress's legitimate policymaking efforts. The report found that in comparison to the vast quantity of laws passed, the Court is not "eating Congress's lunch." It is barely sweeping up the crumbs.
Being human and therefore imperfect, legislatures and administrative agencies are going to enact a certain amount of unconstitutional regulation. A properly functioning judiciary should therefore have a strike-down rate greater than zero. It seems reasonable to ask those who make generalized accusations of "judicial activism" to explain why they are so sure that, on balance, courts are striking down more enactments than are actually unconstitutional — or, if that is not their claim, then to say so explicitly and confine their accusations of "judicial activism" to specific cases, which very few of them do.
Consistent with these empirically unsubstantiated claims of widespread activism, there appears to be a growing consensus among constitutional elites on both the left and the right that the proper mindset for judges is one of default restraint, meaning strong reluctance to strike down government action absent a crystal-clear textual basis for doing so. Because constitutions do not — indeed, cannot — speak with perfect clarity on every important subject, that approach will inevitably create what amounts to a one-way ratchet in favor of more government power. I believe this constitutes judicial abdication.
Specific instances of judicial abdication abound, and I would include as particularly clear examples the Supreme Court's interpretations of Congress's Commerce-Clause power in Wickard and Raich; Home Building & Loan Ass'n v. Blaisdell, which reduced the Contracts Clause to a practical nullity; Kelo v. City of New London (argued by my colleague Scott Bullock), which did the same for the public use provision of the Fifth Amendment; and of course the Slaughter-House Cases, which essentially deleted the Privileges or Immunities Clause from the Fourteenth Amendment and held that the Amendment itself effected no meaningful change in the balance of power between the states and the federal government with respect to the enforcement of civil rights — a holding that, as several of my colleagues and I explain in this new Center for Judicial Engagement video, was self-evidently wrong at the time and continues to warp the Court's Fourteenth Amendment jurisprudence to this day.
Thomas Jefferson warned that "the natural progress of things is for liberty to yield, and government to gain ground." It was not a casual observation. But somewhere along the way, our courts seem to have stopped heeding it.
UPDATE: I meant to include this link to a podcast recorded by my colleague Steve Simpson and I in which we discuss the Government Unchecked study and respond to various criticisms.
October 11, 2011
Nina Totenberg on the Influence of Justice Thomas
An interesting segment, and one that features commentary from the likes of blogfather Eugene, Ed Whelan, Tom Goldstein, and Charles Fried.
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Frank Kameny, R.I.P.
Frank Kameny, whose name was practically a synonym for pioneering gay civil-rights leadership, died today at his home in Washington, D.C., at the age of 86. One news account summarized some of his work:
Kameny's beginnings in advocacy work came after he was fired from his job as an astronomer for the Army Map Service in 1957. He challenged the firing, though, and took the case all the way to the U.S. Supreme Court. Although the court declined to hear the case, an activist was born.
Kameny went on to become one of the leading advocates for lesbian and gay equality in the years before — and since — Stonewall. In 1961, he co-founded the Mattachine Society of Washington. In 1965, he and others with the group famously picketed the White House in shirts and ties, sending a letter to the White House explaining their presence.
Kameny, along with Barbara Gittings, successfully worked with others to convince the American Psychiatric Association to remove homosexuality from its list of disorders in 1973. The next year, he and Gittings served as counsel to Otis Fancis Tabler, Jr., successfully keeping the Defense Department employee from having his security clearance revoked due to being gay.
He filed the first gay-rights brief in the Supreme Court, in his own federal discharge case, in 1961. He lived to see not only the end of the ban on federal employment for gays and lesbians, but the decriminalization of private sexual acts between adults of the same sex, the demedicalization of homosexuality by the APA's decision in 1973, the enactment of laws to protect people from discrimination in employment, housing, education, and medical care, the beginning of gay marriage, and recently the end of "Don't Ask, Don't Tell." (He served in World War II.) His slogan, coined by him in the 1960s, was "Gay is Good." Not O.K. or tolerable, but good. He once sent the police chief a letter inviting him to have sex with Frank at Frank's home at a select hour. He hoped the police would come arrest him, permitting him to challenge the Virginia sodomy law. They didn't take that bait, but the few remaining sodomy laws were declared unconstitutional in 2003. No small amount of each of these changes was directly attributable or traceable to Kameny.
I had the honor to meet Frank on a couple of occasions over the past ten years. He was canterkerous, had a mischevious smile, and was deliberately provocative. He didn't sugarcoat anything or consider the political effect of what he said or did He lived his life openly and honestly, a heroic act for someone of his time. He constantly reminded you not to direct your persuasion inward toward those who agree with you, but outward toward those who aren't yet convinced. His work showed that the greatest constitutional friend of gays and lesbians has been the First Amendment.
He was the last lion, a living link to an entire era of gay male activism that has now expired. But the effects of what he did — which can be seen in the happier and freer lives of millions of people — will be felt long after him.
Lev Grossman's Magicians Series
Like co-blogger Eugene Volokh, I read and liked Lev Grossman's Magicians series. It has interesting ideas and strong characterization. Some have compared the series to J.K. Rowling's Harry Potter book, because part of it is set at a school for aspiring wizards. The real parallel, however, is with C.S. Lewis' Narnia books. Much of the plot is taken up with the protagonists' efforts to find a Narnia-like parallel world called Fillory. Grossman addresses the question of what would happen if some of the humans entering Narnia were more willing to abuse their power and refused to go home to Earth after completing their quests. Grossman weaves an interesting and fine line between building on Lewis' vision and critiquing it. He is certainly superior to Lewis in terms of character development and style, though his work is necessarily less original because partly derivative of its predecessor. Overall, Grossman's series is a fine addition to the new trend of darker, grittier fantasy novels which includes the work of George R.R. Martin, Joe Abercrombie, and others. On balance, I would actually say that Grossman is actually less pessimistic than some of these other writers.
I do have a few reservations about the series. The principal one is that Grossman, like Suzanne Collins, is often weak on world-building. Like the Harry Potter series, Grossman's world features a hidden society of magicians who wield enormous power yet are unknown to normal humans, whose history they have little effect on. In the Potter series, however, there is a very powerful wizard government that prevents wizards from revealing their powers to Muggles and trying to dominate the world. The magical authorities in Grossman's world are a lot weaker. It therefore strains credulity to believe that powerful sorcerers have been around for centuries, yet have never revealed themselves to normal humans, seized political power, or had any impact on history. Grossman's Narnia analogue is also poorly developed and there is little sense of how this society functions and why we should care about it. World-building was also a relative weakness of C.S. Lewis' Narnia books, and it's possible that the thin development of Fillory is an intentional commentary on Lewis' original (though Fillory is actually even less well developed than Narnia was).
Other reviewers have also commented negatively on the obnoxious and unsympathetic personalities of most of the protagonists. This bothers me less, as their stories are still interesting. Nonetheless, until late in the first book, the problems faced by the protagonists seem so trivial compared to the enormous privileges they derive from their status as magicians that it's hard to enter into their concerns as much as the author intends us to do. This is much less of a problem in the last part of the first book and in the second, as the characters mature somewhat and start to face more serious issues.
Overall, I think it's a very good fantasy series, but not quite a great one.
UPDATE: Sci Fi/Fantasy critic Abigail Nussbaum has a more negative take on the first book here. I agree with some of her points, but by no means all.
Egypt Sliding into Military Dictatorship
When the revolution that eventually overthrew Egyptian dictator Hosni Mubarak began, I warned that the end result could easily be a government as bad or worse than Mubarak's was. In a revolutionary situation, liberal democratic forces often get outmaneuvered by more ruthless and better-organized opponents — even if majority public opinion would prefer a liberal regime. In Egypt, I pointed out, the establishment of a repressive regime is made more likely by the fact that public opinion is in may ways extremely illiberal. Unfortunately, this fear has so far been justified by events. As Thanassis Cambanis explains in the Atlantic, the new Egyptian government is well on its way to becoming a military dictatorship in some ways more repressive than Mubarak's regime:
It's hard to escape the feeling that Egypt's January 25 Revolution is being eaten alive. It's too soon to write it off, and too soon to predict that a full-fledged military dictatorship will rule the country for the foreseeable future; but that grisly outcome now is a solid possibility, perhaps as likely an outcome as a liberal, civilian Egypt or an authoritarian republic.
Eight months after a euphoric wave of people power stunned Egypt's complacent and abusive elite, it's possible to see the clear outlines of the players competing to take over from Mubarak and his circle, and to assess the likely outcomes. The scorecard is distasteful. The uprising — it can't yet be fairly termed a revolution — forced the regime to jettison its CEO, Hosni Mubarak, in order to preserve its own prerogatives.
In the last two months, that regime has made clear how strong it feels. In September, in quick succession the military extended the hated state of emergency for another year, effectively rendering any notion of rule of law in Egypt meaningless; unilaterally published election rules that favor wealthy incumbents and remnants of the old regime, and that disadvantage new, post-Mubarak competitors; indefinitely postponed presidential elections, and refused any timetable for handing over authority to a civilian; reinstated full media censorship, threatening television stations and imposing a gag order on all reporting about the military; and the country's authoritarian ruler, Field Marshal Mohammed Hussein Tantawi, unleashed a personal public relations campaign on state television odiously reminiscent of Mubarak's image-making. Furthermore, the government advanced its investigation of "illegal NGOs" that allegedly took foreign money, including virtually every important and independent dissident organization.
Taken together, these moves show a military junta fully confident that it can impose measures of control as harsh — or, in the case of widespread military trials for civilians, harsher — than those employed by Mubarak.
As Cambanis recognizes, the new military rulers have not yet fully consolidated their power. So a more liberal outcome is still possible. But its likelihood is gradually diminishing. Moreover, many of the military government's opponents are far from being liberal democrats themselves. Some of them are radical Islamists who, if they prevail, would establish a significantly more oppressive government than the generals — especially with respect to women and religious minorities.
Some dictatorships are so bad that their overthrow will almost always be a net positive. The new regime can hardly avoid being a lesser evil than the old when the latter is a totalitarian state and/or engaging in mass murder. Consider such cases as Adolf Hitler or Pol Pot. Mubarak, however, was basically a run of the mill despot who repressed political opponents but was not a totalitarian and did not commit mass murder. The overthrow of that kind of regime often leads to the establishment of a worse one. Such an outcome is also a real danger in Libya, where radical Islamists are among the leaders of the victorious anti-Gadhafi rebels.
Lev Grossman's The Magician King
Last month I blogged about how much I liked Lev Grossman's The Magicians; I've now read the sequel, The Magician King, and liked it even more. These are excellent books — as I mentioned earlier, modern fantasy, fresh and very well executed, both in the general plot line and the word-by-word writing. I highly recommend them both.
The Basic Law and Economics of The Durbin Amendment
After a couple of posts on the Durbin Amendment, it has become clear that not everyone has read and familiarized themselves with the Durbin Amendment. So if I may, allow me to lay out a few basic principles:
1. The Durbin Amendment Imposes Price Controls, Not Transparency: This is the key misunderstanding–by its terms, the Durbin Amendment requires the Federal Reserve to set the allowable price of interchange fees at the incremental costs of processing debit transactions. So it expressly prohibits recovery for the fixed costs of running a debit program (operating branches, customer service, etc.) and prohibits a normal return on investments in running the debit card program. In that sense it turns debit cards into something more like checks, where the effective interchange fee is set a zero and the banks and consumers have to bear the costs of checks (so, for example, you are issued your debit card for free but you have to pay to buy your own checks). The argument also ignores the obvious threshold point that payments are Coasian by nature, so costs are reciprocal, so the whole concept of "making costs transparent" by arbitrarily reallocating costs when the costs arise reciprocally is simply a logical error.
2. We Already Have Transparency For Payment Cards: Current law already permits merchants to discount for cash and merchants are permitted to steer consumers to alternative payment methods if they like. So if it is just about transparency, we already have that.
3. We Don't Require Transparency for Anything Else: Right now many merchants offer "free parking," which requires those who take public transportation or walk to a store to subsidize those who drive. Presumably merchants offer free parking because it increases their overall profitability (the same reason they take payment cards, of course). To justify the Durbin Amendment on the ground of transparency would be analogous to argue that the government should not only require the disclosure of how much free parking costs, but to actually prohibit stores from offering free parking. We also don't require merchants to disclose the full costs of paying with cash (safes, employee theft, employee time spent handling and counting cash, armored cars, etc.)–costs that payment card payers have to subsidize for cash payers.
4. Payment Cards are Two-Sided Markets: They are like newspapers, where the advertisers subsidize the readers. In fact, like debit cards, many newspapers are entirely advertising supported and are given away for free (magazines are sold at subscription rates much below their costs). If, for example, the government imposed price controls on what The Onion could charge display advertisers, what would happen? First, they might consider charging readers instead of giving it away for free. Second, they would try to shift advertisers to unregulated margins, such as classified advertising or online. Third, they might reduce their services to reduce costs, such as reducing their distribution. There is nothing anomalous about offering a product for free if the cost is recovered somewhere else in the system. And while it is possible that consumers as a group might be better off if the government prohibited free parking or imposed price controls on newspaper advertising rates, it certainly isn't obvious and would require actual economic analysis. Transparency in and of itself would have virtually nothing to do with the question of whether the pre-price controls price structure was more efficient that the post-price controls structure. To the question of how it could be profitable to offer free debit cards pre-Durbin, this is the explanation–think of how it is economic to produce a free newspaper (free to readers but not advertisers).
5. The Antitrust Rationale for the Durbin Amendment is Completely Wrong: I discussed this in a Washington Times column some time ago. Because payment cards are a two-sided market, in competitive equilibrium, saying interchange fees for merchants are "too high" is identical to saying that fees to consumers are "too low." In Canada, for example, where interchange fees on debit cards are zero, consumers pay high costs for debit cards–higher than the new $5 Bank of America fees.
The problem, if there is one, is not a lack of competition, but rather that much of the competition is for consumers, not just for merchants. Payment card networks seek to balance these two sides of the market through the prices that they charge to consumers and merchants in order to maximize the overall value of the network. As a theoretical matter this can result in prices being too low for consumers and too high for merchants. As a theoretical matter it can also result in prices being just right for both or too high for consumers and too low for merchants. It all depends on the assumptions and elasticities of the players in the system. So the theoretical argument is interesting, but to date, undetermined as an a priori matter. As an empirical matter the question is equally unsettled. What we do know, though, is that there are network externalities from payment cards and there are positive social externalities from bringing people into the mainstream banking system and reducing reliance on cash (which facilitates crime and tax evasion, for example). If theoretical or empirical studies eventually do establish that market competition leads to market failure, then we've got a different question. But based on current theory and empirics there simply is no such consensus.
In fact, this was the decision regulators made in Australia. There it was determined that consumer prices for payment cards were too low and that as a result consumers inefficiently overused payment cards. So interchange fee price controls were specifically intended to reduce merchant costs and raise consumer costs with the goal of reducing card use and increasing use of paper payments. And by general consensus prices did go up for consumers–annual fees went up on credit cards for example and rewards were reduced–and costs for merchants went down. But there is no evidence of any measurable cost savings being passed on to consumers yet in the form of lower prices or higher quality and there has not been even an effort to try to establish whether any purported retail price reductions to consumers were larger than the increased banking prices. It is also not clear that use of payment cards actually declined even though consumers now pay more and get less from using them. Overall, the Australian central bank seems to believe that that the overall market response–higher bank fees, lower merchant costs, and an assumption of retail pass-through despite the lack of evidence or estimate of size–was a good thing. I think that the overall mix of intended and unintended consequences was a bad thing for efficiency and appears to largely have resulted in a wealth transfer from consumers to merchants (driven largely by all of the relevant elasticities of the players in the various interrelated markets). This result of being largely a wealth transfer rather than an efficiency effect is seen as one likely outcome in markets where use and acceptance of payment cards is already high. This doesn't even consider the negative social effects of swelling the ranks of the unbanked.
But, unlike the justifications that are offered for the Durbin Amendment, at least the Australian case was theoretically coherent. By which I mean that they acknowledged the unintended consequences identified by theory and practice and decided to do it anyway. I disagree. But if there is an argument for interchange price controls it is the one adopted by the Australians, not the ones that have been offered for the Durbin Amendment.
6. Even If There is a Market Failure, It Doesn't Justify The Below-Cost Pricing of the Durbin Amendment: But note that even if one adopts the Australian argument that costs are too low to consumers and too high to merchants, it still doesn't support the precise price control of Durbin, which excludes fixed costs and a normal return. If one is convinced that there is a market failure (and as I indicated, I'm not persuaded of that), it still doesn't justify requiring below–cost pricing. It would at least permit full-cost pricing (like traditional utility rate regulation).
Day 1—Why the Call for "Judicial Engagement"?
First, I'd like to thank Eugene for the opportunity to guest-blog about judicial engagement this week.
The Institute for Justice coined the term "judicial engagement" (and created the Center for Judicial Engagement) out of our conviction that America has more government than the Constitution authorizes and that this is largely due to the failure of our courts to properly enforce constitutional limits on government power. In calling for judicial engagement, we are simply asking judges to actually judge the constitutionality of government action in all constitutional cases. What does that entail?
In cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government's actual objectives and then evaluate the "fit" between those objectives and the means chosen to advance them. And, as Judge Sykes recently explained in analogizing the Second Amendment right to keep and bear arms to the First Amendment right of free expression in Ezell v. City of Chicago, "the government must supply actual, reliable evidence to justify" its restrictions. 2011 U.S. App. LEXIS 14108, *62 (7th Cir. July 6, 2011).
While reasonable minds may differ about whether it is possible to identify the government's "true" ends or determine whether there is an appropriate "fit" between ends and means, the fact remains that courts routinely assume both inquiries are not only possible but essential in protecting key constitutional values. Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do.
The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by "negativing" every conceivable justification for the challenged law. The government's true objectives are irrelevant in rational basis cases, and "legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).
Consider IJ's ongoing challenge to Florida's interior design licensing law. The state stipulated it has no evidence that the law benefits the public or that the unlicensed practice of interior design presents any bona fide public welfare concerns. The record makes clear that the only end plausibly advanced by the law is the suppression of competition at the behest of a rent-seeking interest group called the American Society of Interior Designers. If occupational freedom were considered a "fundamental" right, then the reviewing court would evaluate the government's true objectives based on "actual, reliable evidence." In rational basis cases, however, courts abandon that inquiry altogether and simply ask whether some conceivable justification may be hypothesized, no matter how clear the government's actual — and in this case wholly illegitimate — objectives might be.
And it's not just the rational basis test. Even when supposedly applying more robust standards of review, judges frequently accept implausible justifications and unsupported factual assertions from the government. Examples abound in post–Heller gun litigation. Federalism is another problem area. As suggested by the Eleventh Circuit's admonition in striking down the Affordable Care Act's individual mandate, when Congress approaches the outer limits of its power, "the Constitution requires judicial engagement, not judicial abdication."
Judicial engagement is not a call for judges to strike down laws willy-nilly. Rather, it is a call for judges to recognize the importance of constitutionally limited government and to maintain a basic level of analytical consistency. Judges should refuse to ignore evidence, invent facts, or accept implausible justifications in some constitutional settings that they would flatly — and correctly — reject in others.
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Reid: I Didn't Go Nuclear
In today's Washington Post, Senate Majority Leader Harry Reid (D-NV) responds to charges that last week's majority vote to change Senate rules and overturn a ruling by the chair constituted going "nuclear."
The Senate rule change we made last week has been inaccurately described . . . as a resort to the "nuclear option." But rather than a nuclear option that would have forever altered the character of the Senate by limiting the minority's ability to challenge legislation, the change we made Thursday was a return to order. . . .
The Republicans used a new stall tactic last week, one that is used infrequently in the history of the Senate. It was an attempt to make cloture meaningless — to say that the road to passage must include a vote-a-rama of unrelated, purely political votes.
This is the practice we voted to change. The precedent we set merely returns the Senate to the regular order and only affects the ability of the minority to obstruct and delay after more than 60 senators have voted to end discussion.
Now, 60 votes to end debate will mean debate actually ends, as the rules of the Senate intended. We restored the balance between individual rights and comity in the rules of the Senate.
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