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View Diary: Can You Help Me End the Filibuster? (249 comments)

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  •  Constitutionality Still a Red Herring (6+ / 0-)

    It's an interesting op-ed, but, as Geoghegan himself puts it:

    [T]his routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders’ intent.

    Geoghegan then goes on to prove, beyond a shadow of a doubt, that it is at odds with the Founders intent. But that doesn't make it unconstitutional.  And, in fact, the argument that the filibuster is unconstitutional is mostly smoke and mirrors. Most importantly, it has few practical consequences.

    The unconstitutionality of the filibuster is pretty clearly unjusticiable, i.e. there's no way to get it before the Supreme Court. Geoghegan says we "needn't rule out the possibility" that the SCOTUS will take it up, but he offers no indication whatsoever about how it would get there, just the circular argument that "Surely, the court would not allow the Senate to ignore either the obvious intent of the Constitution." But in addition to the fact that the intent of the Constitution (as opposed to the extraconstitutional intent of the Framers) is far from clear here, nobody has suggested who would have standing to take such a case before the Court.

    Geoghegan does derive one practical consequence from his conclusion that the filibuster is unconstitutional: the VP could rule that it is in his capacity as President of the Senate. The problem with this path to eliminating the filibuster is that it would itself create a constitutional crisis....especially since it would only be necessary in a scenario in which a simple majority of the Senate wanted to maintain the filibuster.

    Because that's all it takes to get rid of the filibuster: a simple majority of Senators at the beginning of a Congress voting down the current Senate rules and instead adopting rules without a filibuster.  Paradoxically, we find ourselves in the position of making convoluted arguments for the unconstitutionality of supermajority rule in the Senate because a simple majority of Senators likes supermajority rule (and the Constitution, frankly, gives that simple majority the right to insist on it).

    Two other notes:

    1. Geoghegan is right that the filibuster is entirely against the desires of the framers.  So, of course, were giving women the vote and directly electing Senators.  I'm 100% in favor of eliminating the filibuster, but not because Alexander Hamilton wouldn't have liked it.
    1. The Senate is--and is intended to be--an antidemocratic institution. Though restoring majority rule to the Senate is better than the status quo, having simple majorities of Senators pass legislation will not make the Senate a democratic or majoritarian body, nor will it solve all the problems that institution causes for our system of government.  To be blunt (and intentionally provocative): the biggest problem with the Senate involves not the ways in which it violates the desires of the Framers, but rather the way in which it fulfills them, i.e. the overrepresentation of small states.

    Stop Obama's Wars Now! Bring the Troops Home!

    by GreenSooner on Mon Jan 11, 2010 at 07:17:38 AM PST

    [ Parent ]

    •  Senate is a "continuing body." (2+ / 0-)
      Recommended by:
      coffeetalk, runningdoglackey

      The House must re-adopt their rules at the start of each new Congress. The Senate does not, because it is a continuing body as only 1/3 of members are replaced with each new Congress. See Senate Rule 5:

      The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

    •  Not the Supreme court, The Constitutional option (2+ / 0-)
      Recommended by:
      GreenSooner, lightfoot

      [PDF] THE CONSTITUTIONAL OPTION TO CHANGE SENATE RULES AND PROCEDURES: A ...
      Martin Gold and Dimple Gupta describe ways for a simple majority of Senators to change the text or interpretation of Senate rules, …
      www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf

    •  VICE PRESIDENT BIDEN (0+ / 0-)

      SO ...the VP can make the declaration unilaterally? I wonder why Cheney didn't when the Bush Tax Cut was in such trouble, or why it has not been threatened now over HCR to force Lincoln, Landrieu, Nelson, Lieberman back into line?? The senate needs a good head clearing smash mouth fight.

      "America is ruled by the moral philosophy of the dollar."

      by runningdoglackey on Mon Jan 11, 2010 at 12:11:03 PM PST

      [ Parent ]

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