The BulleTin • Friday, March 26, 2021 A5
EDITORIALS & OPINIONS
AN INDEPENDENT NEWSPAPER
Heidi Wright
Gerry O’Brien
Richard Coe
Publisher
Editor
Editorial Page Editor
Make it easier for
public to participate
in their government
I
f you wanted to, you can watch Deschutes County
Commission and Bend City Council meetings from home.
That was true even before the pandemic.
Spoiler alert! They tend to be low
Of course, actually being at the
wattage. Exceptions do happen. De- meeting may be the best way to see
bates can get feisty. Public testimony what is going on and provide feed-
can be passionate and compelling.
back. But more people will be able to
A Bend City Council
participate in their gov-
meeting did burst into
ernment if the Legisla-
Being able to
song. And taxes, zon-
ture makes this change.
ing, parking, homeless-
bill should pass.
watch government This
ness, policing and other
It will come with a
things that can have a
cost.
meetings from
major impact on your
Some of the technol-
home and even
life do get discussed.
ogy has already been
Still, not many people
because of the
participate remotely acquired
choose to tune in.
pandemic.
is a convenience
Being able to watch
But when boards
government meetings
and commissions start
that the pandemic meeting in their regu-
from home and even
participate remotely is
lar settings again, it will
has brought to
a convenience that the
require cameras and
Oregon. It should not just finding a way
pandemic has brought
to Oregon. It should
to broadcast Zoom or
stay.
stay.
WebEx meetings.
Since the pandemic
For instance, the
began, meetings such
Bend-La Pine Schools
as those of the Bend La Pine School
has been working on figuring out
Board have been easily accessible
how much it would cost to retrofit
online. The Bend Park & Recreation its meeting room with cameras. It
District has also been available. The
could cost the district tens of thou-
Oregon Legislature has regularly al-
sands of dollars.
lowed remote testimony this session.
We believe that would be money
House Bill 2560 would require
well spent.
many government bodies to make
The forced change to remote ac-
meetings remotely accessible, in-
cess has greatly increased the num-
cluding the opportunity for people
ber of people who can participate
to submit testimony. Not having
in their government. If the legisla-
to be present is a tremendous step
tors, local governments and school
forward in accessibility for Oregon
boards don’t want that, we are in
government.
trouble.
Bill would give businesses
a much-needed tax break
G
iving businesses a break on
their taxes is getting a biparti-
san push in the Oregon Leg-
islature. This isn’t some giveaway. It’s
to help businesses who got hit with a
big increase in payroll taxes because
of the pandemic.
Oregon businesses have to pitch
in to help pay unemployment insur-
ance. It helps pay benefits to workers
who lose their jobs. And the pan-
demic has driven the rates up for
some of the businesses that were hit
the hardest and let go of the most
workers.
The rate employers pay is aver-
aged over three years. Some face
tripled payroll taxes, according to
supporters of the bill. An Oregonian
article goes into more detail.
House Bill 3389 gives businesses
some relief. It basically extends the
period that the state uses to calcu-
late the state of the unemployment
fund from 10 years to 20 years. It
also would provide for deferral of
up to one-third of 2021 unemploy-
ment insurance taxes for employers
whose tax rates increased by 0.5 per-
centage points or more from 2020
to 2021.
There is much more to the bill
than we have just summarized here.
Sponsors include Rep. Daniel Bon-
ham, R-The Dalles, who represents
Madras, Sisters and other parts of
Central Oregon.
Many employers — small and
large — are facing increasing taxes
just when they don’t need it. Busi-
nesses in Oregon had no way to pre-
pare in advance for the pandemic.
They need help recovering. It’s en-
couraging to see a bipartisan group
of legislators step in to help. But will
the Legislature pass it?
Editorials reflect the views of The Bulletin’s editorial board, Publisher Heidi Wright, Editor
Gerry O’Brien and Editorial Page Editor Richard Coe. They are written by Richard Coe.
The filibuster has fewer and fewer defenders
BY PAUL WALDMAN
The Washington Post
T
he filibuster’s days are num-
bered. When it’s finally re-
formed (and it will almost cer-
tainly be reformed, not eliminated),
the Senate will not become a paradise
of wise legislating and democratic ac-
countability. But it will be a much more
responsive and effective place than it is
now, and the momentum to get from
here to there may be unstoppable.
For some time, it was only liberal
Democrats in the Senate who wanted
to see it go, so that bills with majority
support could actually pass. But now
moderates are becoming convinced
— by the power of the arguments
they’re hearing, the reality of Repub-
lican obstruction, and the tantalizing
possibility that they might actually get
to do the job they got elected for.
But each has his or her own rea-
sons. In The Washington Post on
Wednesday, Sen. Angus King of
Maine — an independent who cau-
cuses with the Democrats — ex-
plained why he has changed his mind.
When King got to the Senate, he
wrote, he was persuaded by the “what
goes around, comes around” argu-
ment. If Democrats eliminated the
filibuster to pass their own priorities,
goes this line, then Republicans would
be free to do the same the next time
they took power, and the result would
be a lot of policymaking Democrats
didn’t like.
But now, King says, he is fed up:
“But this argument is sustainable
only if the extraordinary power of the
60-vote threshold is used sparingly on
major issues or is used in a good-faith
effort to leverage concessions rather
than to simply obstruct. If, however,
the minority hangs together and reg-
ularly uses this power to block any
and all initiatives of the majority (and
their president), supporting the con-
tinuation of the rule becomes harder
and harder to justify, regardless of the
long-term consequences.”
This is significant, because King
isn’t looking to get rid of the filibus-
ter so Medicare-for-all or a universal
basic income can pass. He’s one of the
moderates.
As it happens, I and many others
disagree with the logic of the “what
goes around, comes around” argu-
ment that King still finds somewhat
persuasive. The terrible scenario its
advocates posit — that your party gets
to enact the agenda it advocates, and if
the other party is elected, then it gets
to enact its agenda — is also known as
democracy. It’s what an accountable
system is supposed to look like.
It also reflects a terrible philoso-
phy of governing, one that says I don’t
mind if I achieve none of the policy
changes I want, so long as the other
party doesn’t, either. It makes gridlock
the goal of the system, which inevita-
bly makes voters disillusioned.
But if King still finds it somewhat
persuasive, that’s OK. What he seems
to envision is a system where the mi-
nority still has the power to obstruct
— but only if it uses that power with
restraint.
That was the situation for decades,
when the filibuster required those
who wielded it to hold the floor; it was
used mostly to prevent Congress from
passing civil rights laws. But today,
the parties’ ideological sorting (there
are almost no liberal Republicans or
conservative Democrats left), and
changes in the rules that allow the mi-
nority to create a filibuster literally by
sending an email, have created every
incentive for that minority to filibus-
ter just about everything the major-
ity wants to do. So even senators like
King have lost their patience. But this
debate isn’t settled yet.
Former filibuster defenders, includ-
ing President Joe Biden and senators
such as Dianne Feinstein, D-Calif., are
steadily inching their way toward re-
form, saying they’d be open to changes
in the rule if Republicans continue to
use it promiscuously. Each of them
might have their own last straw in
mind, the bill they will not tolerate
being killed by the minority. First, fil-
ibuster reform will have to be under-
taken to achieve passage of a bill that is
widely popular with their constituents,
even many of the Republicans. Then
they can say that the substantive mat-
ter at hand is so vital that they had no
choice but to retreat on the filibuster.
Second, they’ll have to be the ones
dictating the terms of the reform, and
it will have to stop well short of sim-
ply eliminating the filibuster. Perhaps
it will involve forcing the minority to
talk, or adopting one of the other ideas
to change it, but they’ll need to say be-
cause of their efforts, the filibuster still
exists to protect the minority but it will
no longer grind the chamber to a halt.
That’s the way this ends, and a new
era where the party elected by the vot-
ers can pass the agenda those voters
agreed to can begin. We’re not quite
there yet, but the momentum is get-
ting stronger by the day.
e e
Paul Waldman is an opinion writer for the
Plum Line blog.
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A federal judge’s dangerous assault on the free press
BY J. MICHAEL LUTTIG
Special to The Washington Post
F
ederal appeals court Judge Lau-
rence H. Silberman’s danger-
ous dissenting opinion in Tah v.
Global Witness Publishing last week
has already caused a firestorm — not
because he urged the Supreme Court
to overrule New York Times v. Sulli-
van and its “actual malice” defamation
standard, but because of the astonish-
ing and disturbing reasons that he pro-
posed for dispensing with that land-
mark decision.
Global Witness was — or should
have been — an unexceptional case.
The two judges in the majority found
that two Liberian officials who sued
Global Witness failed to meet the re-
quirement that the human rights orga-
nization acted with knowing or reck-
less disregard for the truth in writing
about them.
Silberman used his dissent as an op-
portunity for score-settling with the
Supreme Court and the nation’s me-
dia. He offered two reasons Times v.
Sullivan should be overruled, both of
which are shocking. Neither is correct,
and neither offers a legitimate basis for
dispensing with the 57-year-old prec-
edent.
The first is that, in Silberman’s view,
the ruling bears “no relation to the
text, history, or structure of the Con-
stitution” and is “a policy-driven deci-
sion masquerading as constitutional
law.” According to him, Times v. Sulli-
van is “a threat to American Democ-
racy” and “must go.” Paraphrasing
former Soviet Union leader Leonid
Brezhnev as having said that “once a
country has turned communist, it can
never be allowed to go back,” he ac-
cused the Supreme Court of having
“committed itself” to a “constitutional
Brezhnev doctrine” in its adherence to
precedent.
The court’s unanimous decision in
Times v. Sullivan set constitutional
limits on state defamation laws for
the first time, striking the exceedingly
difficult and admittedly imperfect
balance between the right of public of-
ficials not to be defamed by false accu-
sations and the right of a free press to
report the news. In its ruling, the court
reinforced the bulwark of the First
Amendment and American democ-
racy, and the delicate balance it struck
remains the appropriate one today.
Constitutional rights do not wax and
wane with the wind.
The second, more explosive and
suspect, reason the judge gave is that,
in his opinion, the constitutional pol-
icy of free speech that Times v. Sulli-
van seeks to protect has been turned
upside down by what he asserts as fact:
that almost every media organization
in the country is biased in its reporting
against the Republican Party and in fa-
vor of the Democratic Party. Note, not
against public officials and high office-
holders, celebrities, the politically or
financially powerful, political or social
conservatives, nor even Republicans,
but against the Republican Party.
In Silberman’s view, “two of the
three most influential papers,” the New
York Times and The Post, “are virtually
Democratic Party broadsheets,” with
the Wall Street Journal’s news pages
leaning in that direction. Meanwhile,
“nearly all television — network and
cable — is a Democratic Party trum-
pet. Even the government-supported
National Public Radio follows along.”
Silberman offered little support for
this astonishing indictment of the me-
dia. But having concluded that nearly
the entire national media distorts the
news against the Republican Party and
that this “homogeneity in the media . .
. risks repressing [the Republican Par-
ty’s] ideas from the public conscious-
ness,” he went on to argue that the me-
dia has “abused” its rights to such an
extent that it effectively has forfeited its
First Amendment protections.
The judge ended his dissent with
an unfounded, but no less chilling,
warning to the media, the Democratic
Party and the Supreme Court: “It
should be borne in mind that the first
step taken by any potential authoritar-
ian or dictatorial regime is to gain con-
trol of communications, particularly
the delivery of news. It is fair to con-
clude, therefore, that one-party control
of the press and media is a threat to a
viable democracy. It may even give rise
to countervailing extremism. … And
when the media has proven its willing-
ness — if not eagerness — to so dis-
tort, it is a profound mistake to stand
by unjustified legal rules that serve
only to enhance the press’ power.”
It is tempting to consign the judge’s
opinion to the infamous dustbin, and
that may be where it ends up. But
there is an illuminating silver lining
— even if unintended by Silberman.
Now, Times v. Sullivan is all but cer-
tain to remain the law of the land, the
dissent having conclusively demon-
strated that the precedent’s First
Amendment rule is as essential to a
free press as judicial immunity is to an
independent judiciary and legislative
immunity is to the legislature.
And if the court ever does revisit the
case, it assuredly will not be because
that decision is an intolerable imposi-
tion on the “Brezhnev doctrine,” an il-
legitimate exercise of constitutional in-
terpretation, or “a threat to American
Democracy.” Let alone, for that matter,
because the court concludes that the
American media is uniformly biased
against the Republican Party in favor
of the Democratic Party.
e e
J. Michael Luttig served as a judge on the U.S.
Court of Appeals for the 4th Circuit from 1991
to 2006.