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Hugh Hewitt Book Club

Dr. Matthew Spalding on the failed health care bill in the House, and the Coming Filibuster by Democrats of Neil Gorsuch

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HH: Dr. Matt Spalding is the president of the Kirby Center, or the director of the Kirby Center, which is the Hillsdale College lantern on Capitol Hill. It is the flame of reason, the tower of illumination that oversees the Capitol that Matt Spalding runs so well. Dr. Larry Arnn is usually here, Matt Spalding, or one of the fine members of the faculty of Hillsdale College fills in for him each week on the Hillsdale Dialogue. Dr. Spalding, welcome back, good to talk to you. Why aren’t you on Twitter?

MS: Good to be with you, Hugh. Never been inclined to do Twitter. That’s, you know, making principled arguments in 16 words, or whatever it is, doesn’t quite fit our way of thinking about things.

HH: Well, you know, it doesn’t, but it allows people to alert folks. I just alerted them to this story, and this is very far afield we’re going to do, but I just want to get your reaction. You know, there’s a growing intellectual intolerance of America.

MS: Right.

HH: Would you agree with me on that?

MS: Absolutely, especially among elites, generally, on the campus in particular.

HH: Yeah, one of the probably thought leaders in America for Roman Catholics generally, and I think people of faith generally, is Archbishop Charles Chaput of Philadelphia.

MS: Right.

HH: He’s also a member of the Synod Council, which means he’s one of the most 15 important Catholics in the world. I mean, there’s the Pope, there is the cardinals that make up his cabinet, and the cardinals elect the next Pope. But in between, in terms of doctrinal matters, the 15 bishops and cardinals on the Synod Council are the big guys, and Chaput’s one of them. and I’m in Sacramento, and I learned yesterday that a local high school Jesuit high school principal participated in blocking Archbishop Chaput from coming to Sacramento. Can you believe that?

MS: Amazing. Amazing. I mean, what this reminds us, and look, Hugh, we know we’re in a massive battle. Not only the political battle before us, which I think is extremely important, and one of the reasons why it’s so divisive is we’re engaged in a very serious battle here. But underneath that, in a long term, and one of the reasons why we want to oppose this massive state and have it back off, is because of what’s happening within our culture. I mean, the state, the expansion of the state, its regulations, it puts political correctness in force through its rules and regulations, it’s stultifying for that culture. But underneath that, over time, there’s a corrosiveness going on that I think the modern state feeds, which creates a deep intolerance that now is, I think, growing more, because there’s this perception, I think, correctly, that the modern state is either on their side in most cases, or it increasingly looks like the opposition can’t do anything to stop it. And so I think the left is freed up, in a way, to actually pursue these goals and become increasingly intolerant.

HH: That’s it, totalitarian. The definition of intolerant is totalitarian. I had this bit dust-up this week with Politifact, which I view as an engine of the left and designed to truncate and cut off argument by declaring things false which are not false. I declared on Meet the Press that Obamacare is in a death spiral, and they fact checked me as false and pretended to reach out to me. And I just clobbered them all week, and that’s because they’re totalitarian, not because, I don’t care if they think I’m wrong. That’s an opinion. They’re entitled to it. But the idea that they can declare off limits a statement so obviously manifestly reasonable as Obamacare is in a death spiral, or that, and again, I haven’t confirmed this, yet, I have to get the details, that a Jesuit would lead or participate in an effort to keep an Archbishop out of a diocese where he’s not the archbishop, that is a danger to free speech. It’s just a complete shutdown.

MS: Well, and I assume they are, they don’t want him to come there, because he actually believes there are such things as moral truth? Now the flip side, of course, we know has been going on for some time, which is to say that leading Catholic institutions invite major public figures that themselves are deeply hostile and opposed to teachings of their own Church.

HH: Yeah.

MS: This is really the other side of the coin, which is that much more dangerous when you’re shutting down the speech of those who, you know, should be agreeable, you’re not even allowing that, is extremely problematic.

HH: I don’t know if the Archbishop has been to Hillsdale College or Kirby, but the reason he upsets the left so much is because number one, he’s a Native American. He’s the first ever Native American bishop.

MS: Right.

HH: And number two, he’s giantly gifted, intellectually. But he is a challenge to conservatives as well, because he’s really quite pro-immigration rights and the regularization and citizenship for immigrants. And so he’s got a social gospel. So he confuses the heck out of everybody. But I, and take it away from him for a moment. Charles Murray at…

MS: Middlebury, right.

HH: Middlebury…or Jonah Goldberg at any number of colleges, or Guy Benson at any number of colleges, I don’t know how we reclaim the idea that you can have a full, last night, did you happen to watch CNN when Jack Kingston was on last night?

MS: No.

HH: Okay, Anderson Cooper’s show, six guests, so they do the Anderson Cooper on the left with six guests. Jack Kingston, former Congressman, smart guy, five others, including my friend, Gloria Borger, who I respect, Ryan Lizza, who I respect, Jeffrey Toobin, who I respect. They just basically hooted at and laughed at Jack Kingston throughout his entire effort to defend Devin Nunes, who may not be defensible, but I mean, they, it was a shout down.

MS: Look, I think all these things point to, first of all, there are underlying factors going on here that have been afoot for some time. This is a move, these intellectual moves in our culture, we’ve been observing for decades. I think what’s happened now is the fight, the left is perceiving the fight has gotten to a point where there are potentially some serious threats to what they’re about, whether they’re taken on the campus or in politics. And the left has made a decision that for all intents and purposes, we are not, this is all-out war at all levels at all times. And so any conversation about any reasonableness of any of these proposals, setting aside whether we completely agree with them 100% at this point, but just that conversation must itself be stopped. And it really points to, and really shows the cards of the left to the extent to which it’s increasingly intolerant, and it’s willing, as it did in the previous administration, and as it does through college administrations on most campuses, it’s willing to use its authority to enforce that intolerance more and more. And now that some of that authority is in question, they’re kind of lashing out, if you will, in making their arguments, both this interview you mentioned last night, but also on campus, how they’re reacting to, I mean, people like Charles Murray, who has different opinions than they do, but is one of the most reasonable and soft-spoken commentators you could possibly imagine, isn’t he? He’s not threatening at all. In that case, I think it was the administrator of the college…

HH: And so I think the answer to this is…

MS: …that is one that was, you know, who doesn’t agree with him. She’s the one who actually got injured by one of those protestors.

HH: Right. I think the answer is in Solzhenitsyn’s memoir, The Oak and the Calf, he says what if it’s all paper mache? What if you can stick a stick through it, referring to the Soviet Union. It turned out to be paper mache. It fell apart in the rain.

MS: Right.

HH: We, the intellectual bullying of the left is really paper mache if people just show up, because they look bad, and at an increasingly, I think, is obvious to America that the playing field isn’t even remotely level, and the left has to set it up that way. They have no arguments, Matt Spalding. They have nothing left. It’s all been tried, and it’s all failed, and Obamacare is in a death spiral, for example, and they can’t blame anybody but themselves.

MS: No, that’s right. That’s why, it’s less why this is such a monumental opening in terms of the political conversation. Look, what, for whether one agrees with everything or likes everything about him, what, you know, Donald Trump did in his campaign and represents writ large is an increasing, he wouldn’t put up with this kind of stuff, shall we say, right, this political correctness, this kind of liberalism run amok. And he broke through that. But what we need to do now is figure out whether it’s through the legislation they are currently debating, or what is, we’ve got to figure out somehow to follow up on this, because I think you’re absolutely right. This is, what’s the saying in thinking of Solzhenitsyn here? What’s the thing that breaks through and makes that clear? The problem is that a lot of Americans who don’t like any of this, who object to this, who have been taught for years, for decades that they’re the ones who are intolerant, and they must put up with all this.

HH: And when we come back from break, we’re going to talk…

MS: They need to be shown how to go and what to do about.

HH: What to do about it. I want to talk about the health care bill when we come back, because what we do not want to do about it is freeze ourselves into irrelevance. And the Freedom Caucus, I’m now calling them, Matt, there’s a sub-caucus within it, the Area 51 sub-caucus, that believes in legislative flying saucers. And the perfect became the enemy of the good last week, and I want to talk with Matt Spalding, director of the Kirby Center, Hillsdale’s lantern of reason. Hillsdale is the lantern of the North. The Kirby Center is the lantern of the Potomac. We’ll be back to talk to its executive director, Matt Spalding, in a moment.

— – – —

HH: Matt, let’s go back to the health care bill before we get too far afield, and go to the filibuster. It fell apart last week, because half of the Freedom Caucus, the right edge, combined with the left edge of the Republican Party, the centrist and the liberals, to deny Paul Ryan and the party, the overwhelming majority of the party, the opportunity to push it through. I am dispirited by this, because I don’t think we’re going to get anything through. I just don’t, because of the inability of the Freedom Caucus to recognize that the perfect must not be the enemy of the good. What do you think?

MS: Well, look, I think that, back up for one second. I think your general, you’re right. This shows a divided caucus. But beyond that, I think it also grows out of a massive weakness of Congress, and especially the House, as an institution. And Republicans, as of yet, have not quite figured out how to legislate. They’ve not relearned that process in general after years of dysfunction and inability to kind of flex those muscles. Congress, it strikes me, this revealed that Congress in the House is actually extremely weak. I fear that the speakership is too weak to get something through, which means the House is not carrying out its Constitutional duty to actually legislate. Now the particulars of how that’s playing out, you’re right. There are some, there are numerous factions now within the Republican Party. This reminds me of the factions in the 19th Century within the Republicans who were preventing legislation to deal with the slavery question, right? You have abolitionists who wouldn’t do anything unless it were absolutely perfect. But the fact of the matter is you needed the Henry Clays of the world, and eventually the Abraham Lincolns who could see a way to thread this through in a way that still served the ultimate objective, namely getting rid of slavery, but also saving the Union that required some compromises, some which were pretty hard to swallow. But some of them bought some time, put it off, and led to larger solutions. And we need, you know, somebody’s got to figure this out, but then have the ability, the strength at speaker, right? The Speaker is a Constitutional officer. His job is to put together a majority, but he’s got to make it and worry about why this particular majority or this particular piece of legislation goes towards our goal. So I guess my short answer is the way I read it, is that yes, there are some factions around the edges who are preventing this from going forward. But having said that, I worry about how the majority is generally operating, and how, and as much as I strongly support and Speaker Ryan is a friend. I think he’s the best guy up there. I worry about the, he needs to be in a stronger position so they can craft legislation, get it through, but also start explaining better, because he knows this, why this piece of legislation and things like this are moving towards the objective. The Freedom Caucus guys have the right ideas in their heart, but they need to be…

HH: Now this is a question of prudence, Matt…

MS: …but somebody’s got to tell them why this gets them there.

HH: This is a question of prudence. I think he is the most skilled member of the caucus. He’s got a great leadership team in Kevin McCarthy, Scalise, Cathy McMorris Rodgers.

MS: Right.

HH: …and others, Pete Sessions. I think they have to punish people. And in politics, you have to be prudent about this. But if you do have a recalcitrant part of our caucus that will not reason together, and they’re on left and right, they ought not, there’s a leadership council of 12 that doles out the benefits. And the chairman of the Appropriations Committee, a liberal, a liberal whose name I can’t remember, it’s a very long liberal name, voted against the bill. I don’t think you should be the chairman of the Appropriations Committee when you call a party vote. This isn’t a parliamentary system, but there sometimes it’s not a free vote. 20 second, do you agree with me?

MS: Yeah, you need a strong speakership to get things done, and sometimes, you’ve got to do some things like that, absolutely.

HH: Yeah, yeah, get the bad out. I’ll be right back with Matt Spalding from the Kirby Center.

— – – — –

HH: But today, we talk politics, because we’re coming to a momentous week for the Constitution. Judge Neil Gorsuch will be voted out of the Judiciary Committee on Monday, April the 3rd. That is happening. He has 52 solid Republican votes to be confirmed, and two Democrats will support him – Joe Manchin and Heidi Heitkamp. So he will be confirmed if there is an up or down vote on his getting on. Democrats have said, though, they wish to rely upon the only part of the nomination rule set not broken by Harry Reid in 2013 via the Reid Rule. The Reid Rule is that a simple majority of the Senate can change the rules of the Senate in the course of the Senate proceedings. That was new. It was radical. It was innovation introduced by Harry Reid. But he did not extend it to Supreme Court nominees. So the second application of the Reid Rule would extend it to Supreme Court nominee. Matt Spalding, first, some math, they did not ask, because reporters never ask the obvious question, either Manchin or Heitkamp if they would support the Reid Rule’s application.

MS: Right.

HH: So we don’t know if we have two Democrats who are willing to end the filibuster. What do you think ought to happen? What do you think is going to happen with regards to this?

MS: Well, let’s back up from when asked the general question, looking at it from a Hillsdale broader perspective. What’s going on here? And I’m going to tie back here to our discussion about the health care legislation as well, is that in both cases, rules, which are rules of the body, which themselves are not laws and are not Constitution, they’re not in the Constitution…

HH: Although the authority to make them is committed to the House body and the Senate body.

MS: Those rules are…the House body, and each can make their own rules, right?

HH: Right.

MS: But they themselves are not laid out in the Constitution.

HH: Correct.

MS: But these rules, which can change, and there’s, we can talk about how I think this is problematic on many counts, but those rules are preventing Congress, in the case of the health care legislation, because they were trying to go through reconciliation to get around that, and in this case because the Senate is dealing with the filibuster on a Supreme Court justice, those rules are preventing Congress as a body, in this case, the Senate, from doing its Constitutional obligations. So I think there’s a broader, serious question here, especially at this time of intense debate about the direction of our country when an, this majority of the American people have wanted to turn and go in a different direction, and yet we’re allowing rules, which are two steps down from the Constitution itself, to prevent this from going forward. So overall, I think we’ve come to a crossroads where we need to discuss more broadly the role of the filibuster, which has not been around forever, in general, not just on Supreme Court nominees, and think about the role that plays in our politics right now. If this whole movement and this moment to change the country’s direction falls because of a rule, this, I think we’ve got a serious rethinking to do. Now in this particular case…

HH: And there are many other things that are prohibited by the rules, not just the Supreme Court nomination to 60 votes, but budgets that need to be ordered. The American people voted for a huge change. They would like to see the sequester removed. They would like to see massive cuts in spending on things like NPR and the National Endowment for the Arts, and stupid things that are hidden away in budgets everywhere else. I don’t think NPR’s stupid or the NEA is stupid, but they don’t need federal funding. They want things to change, but they are frustrated by the supermajority rule.

MS: Right, they want to break though. Let me give you two other, another example. When I mentioned earlier the overwhelming weakness of Congress as a body, I think this makes that even more patently obvious. Think about the inability of Congress as a body to budget. They can’t do these, it’s, one of its chief legislative duties, which is to maintain and keep an eye on the purse, which is one of their primary Constitutional obligations. And they end up every year ending up, ending with these massive omnibus pieces of legislation, which are all or nothing and require an up or down binary vote, which sometimes can lead to shutdowns of the government. That’s a terrible situation, and not a way to legislate. And every time they go there, whether it’s the omnibus, or they’re forced to go through reconciliation, or in this case, they’re running up against a rule in the Senate called the filibuster, that just points to the weakness of this body to do its general obligations of legislating through normal order, to putting things together. One of the reasons why I think the health care faltered is that it was designed from the get go to go through reconciliation. And you’re trying to read, like the tea leaves, what’s the parliamentarian going to say about reconciliation rules. I mean, you’re playing on weak, weak ground once you go there.

HH: So let’s go back to Justice Gorsuch.

MS: Anyway, back to Gorsuch, yes.

HH: There is, if the Republicans are blocked by a filibuster, and right now, for the benefit of the audience, Chuck Schumer is trying to make a calculation as to whether or not Mitch McConnell has the votes to invoke the Reid Rule. If he does, I don’t think he will filibuster. If they have any doubt at all, I think he will. And that goes to whether or not there are enough Republican Senators, or any, in fact, who value the institution of the Senate so much that they will kill Gorsuch in order to save the Senate. I personally believe that’s the end of the Republican majority for the foreseeable future. I believe it is a devastating loss in 2018. I don’t know if I can campaign for, raise money for, if they don’t put Gorsuch on the Court, I may be done.

MS: Yeah, no, I think that’s right. If they, because of that rule and their inability to change it kill the Gorsuch nomination, I think you’re absolutely right in the same way if they do nothing on health care in the House, and they let Obamacare stand, I think actually their majority is in jeopardy there as well. It’s just that in this case, whereas in the House, there are complications. It’s complicated legislation. No one knows what reconciliation means. It’s inside baseball. Here, it’s much clearer. It’s this particular nomination, and we know what’s going on. I think they’ve got to make that change. One advantage they have is that here, they can make a distinction between well, we’re going to say it doesn’t apply for Supreme Court nominees. It’s an extension of the Reid Rule. There’s a narrower way to read this, which I think allows them to proceed. The other thing I will put on the table here is you know, talking to smart Senate people, now I guess I’m violating my own point about making a point about the intricacies of the rules, there might be other options, including enforcing a two-speech rule, which is, you know, goes along with the filibuster rule, that in the case of the Supreme Court nominee, might allow them to get there without actually changing the filibuster.

HH: And I don’t care if they do that. I really don’t care how they get them, but the Constitution is in the balance.

MS: Right. They’ve got to get there.

HH: And so I come back to the, this is the most important thing that we do as a free people is preserve our basic law, isn’t it, Matt?

MS: Absolutely. And I think it’s all at stake, and I think that we need leadership who, and we need to buck them up, and we need to make them see where they need to go, and to figure out how to get there. And if we don’t do that now, given this massive opportunity in this nomination, but in general, I think I would be extremely worried about where this goes, because now you’re faced the possibility of losing your control of Congress in one house, both houses, and you know, where does this go then? I mean, you know, President Trump has already talked about the necessity of going elsewhere to try to get some things done. Are those going to be anywhere near as good?

HH: And if you don’t lose sight of your principles, you can always rebuild. But you can suffer midterm losses and presidential losses. But if you lose sight of the goal, I think in the City of Man, Strauss said this. The West will never be in crisis if it never loses sight of what it’s about.

MS: Right.

HH: And it might go down, but it won’t be in a crisis. The Republican Party will be in a crisis if they don’t confirm Gorsuch, because they will have lost sight of why they exist.

MS: Absolutely. Absolutely. And they don’t talk that way. That’s another thing that always has bothered me. They hold their cards very close, but they don’t make public arguments. You’ve got to make a public argument about these things. It’s got to be crystal clear, and you’ve got to be strong on those principles. Being strong on principle is what in turn allows you to be more practically flexible. How do we actually do this? Well, we’ll figure that out. That’s the essence of prudence. That’s why prudence is about good deliberation, and why in the end, it’s a virtue. But you’ve got to be crystal clear about what you’re going, where you’re doing and what your principle is in order to be prudent. And I fear we’re kind of down in the weeds trying to figure these things out very narrowly, because we might be reluctant about stating our principles up front.

HH: You’re right.

MS: In the House, they stated a principle we’ve got to repeal Obamacare. Okay, how are we going to do that? And why does this get us there? You’ve got to be very clear about that. Then, it’s a lot easier to make a case about well, how this is a prudential decision, and we’ve got to have some flexibility here. But here’s where we’re going. And they didn’t do a good job on that, I don’t think, or good enough.

HH: And the number one principle now, and I think we can’t state it enough, and I’m wondering what you’re doing next week around this, and we’ll come back after break and ask that, the number one principle right now is the Constitution is in the balance, because we have ended up somehow with the Supreme Court adjudicating everything.

MS: Right.

HH: They have a case in front of them on April the 19th called Trinity Lutheran on whether or not a little Blaine Amendment, all of which I believe are unconstitutional, because they were anti-Catholic in their motivation, a little Blaine Amendment in Missouri prevents a Missouri Lutheran preschool from receiving a grant to resurface their children’s playground with recycled tires. They ranked the grants. There were more than 50 grant applicants. They were ranked number 14, I believe. They gave away 30 of them. And then the administrator simply said you can’t have one because you’re Lutheran. Now that flies in the face of the Free Exercise Clause. It’s just a deeply discriminatory…

MS: Well, and it’s also just common sense. That’s ridiculous.

HH: Yes, and so Gorsuch will probably cast the deciding vote on that. I’m not sure where Justice Kennedy will be. I think he’s a common sense man and will be appalled by this. So I think it will be 4-4. The 8th Circuit upheld the denial. So if we don’t get him up there, the most important Free Exercise case in 25 years goes and comes without him being there. We have to act.

MS: And how many other things as we go down the pike, look, this is a divided Court. The Court is all over the place. This is a fight for the Constitution and the future of this republic as it goes forward. And our guys’ got to understand that, and they’ve got to get him on the Court.

HH: I will be right back with Matthew Spalding. One more segment in this week’s show. It is the Hillsdale Dialogue.

— – – — –

HH: How are you doing this week, Matt? Are you organizing special programming? Having any senators over? You will often do extraordinary things at the Kirby Center, but I don’t know if you were able to plan on the timing of this, because it’s been up in the air.

MS: You mean the Gorsuch nomination?

HH: The filibuster, yeah, the Gorsuch…

MS: The filibuster? Just continue to talk to people and putting stuff out there, and going over to the Hill and staying in touch with people. I mean, I think the, gosh, this is an example where the politics of the moment have taken on a life of their own. And so we make our arguments and constantly point these guys to the higher objectives here. What I worry most about is they miss the forest for the trees. That’s why kind of getting bogged down in these narrows rules conversations are problematic. And I fear too many of them, well, I think there might be a way out of this. But I mean, look, in general, what we need is more politics rather than less. This has got to be pushed and made a bigger public debate, and pressure’s got to be brought to bear so that people understand what exactly is the discussion here, what’s going on, what are the alternatives, and what’s standing in the way.

HH: Have you ever hosted a discussion about whether or not the Senate’s rules are archaic? And you know, I’ve talked to the Leader. He’s deeply devoted to them. I read his book, The Long Game.

MS: Yeah, yeah.

HH: He believes in protecting the rights of the minority, but I believe that the structure of the Constitution itself protects the rights of the minority, as does the Bill of Rights, and that this is super-protected. And in an era of accelerating crisis, we cannot afford this. I just, I’ve begun to really doubt, and I’ve been arguing publicly for a long, I’ve been against the filibuster for 15 years, so I don’t mind it going.

MS: Right.

HH: I wanted us to nuke it under the Frist rule.

MS: Right.

HH: And the Reid Rule, they’re embarrassed by it. It’s interesting, Matt Spalding, Democrats are embarrassed by what Harry Reid did now. They are not consistent in their argument, so they have to hide what happened. Isn’t that interesting?

MS: Well, it is, because for them, it’s merely politics. But they opened the door for having, among other things, very good nominations in a presidential administration. But they really don’t have an argument, but I mean, this also reveals now that we’re in this situation, you’re absolutely right, where we’re in the midst of a long-term crisis here about how to turn this government around. And it’s now patently obvious that there is a rule which is two steps down from the Constitution standing in the way. But I think we need to figure out how to bring more pressure to bear on the Senate so that they’re held responsible for that. And a nomination of this magnitude, in this particular issue, will be before them squarely, which will force them to think this through. And I think that rule has got to give way. It just makes no sense. And at a time like this, the Senate is incapable of proceeding because of, you know, that rule as we go into these decision where the Court is right now, and more broadly, beyond that, I go back to my general point, the filibuster is essentially preventing the House and Congress as a whole from proceeding on important legislative matters as well. I think we’ve got a big national debate on this.

HH: Yeah, things that we need to get done because we’re broke, and we’re not defended, and we have terrible regulatory overreach, and the administrative state needs reforming. So America, bottom line, call your senators – 202-224-3121. Call up Susan Collins. Call up Lisa Murkowski. I think they’re on the right side of this. Arizona, you’re waking up to me right now. Call John McCain. Urge him to break the filibuster. I don’t know who’s weak on this. I don’t really know who’s wobbly.

MS: OH, I think a lot of them are probably, for the Supreme Court nomination, probably many less so, but I think they’ve got to know the magnitude of this moment, and what it means for this nomination to the Supreme Court, but also looking forward, what it means for the ability to turn the direction of this country and go after the things that plague us, which is causing our crisis, which is this overwhelming state which is destroying our self-government. That’s a threat to the Constitution. People need to make sure their senators understand the magnitude of that so they don’t have an easy pass here.

HH: Very well said. Thank you, Matt Spalding, for filling in for Dr. Larry Arnn. As always, wonderful to talk to you. Have a great weekend in Washington with the cherry blossoms.

End of interview.

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