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View Diary: The future of the filibuster (117 comments)

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  •  I think the filibuster is unconstitutional (0+ / 0-)

    Cite how exactly where and how it violates the constitution, particular in light of Article 1 Section 5 where it explicitly states that each House can determine their Rules of Proceeding please?

    cheers,

    Mitch Gore

    January 20, 2009... the end of an error.

    by Lestatdelc on Thu Jan 28, 2010 at 04:08:51 PM PST

    [ Parent ]

    •  I think that the argument is, in effect, (2+ / 0-)
      Recommended by:
      sharman, wmholt

      that the filibuster acts as a constitutional amendment.

      IS5 allows each house to set their rules as they please -- within the limits of other constitutional rules. The Senate cannot, for example, create a rule that lowers the threshold for treaty approval, or vote to allow one member to pass laws -- aka, create a King of the Senate. Or change the term of a member. Or...

      The filibuster is constitutional insofar as it's merely a rule of speaking. It's not a veto power to the minority -- but a rule that defines how long a member may speak.

      But when, in fact, it changes the explicit rules of the constitution, it then becomes unconstitutional.

      Could the Senate declare that the President may sign any treaty he wish? Or select by lottery a person that may then pass any bill she wishes, as long as the House consents? Or pass a rule altering the 2/3 majority for expulsion of a member?

      •  Doesn't hold water (0+ / 0-)

        Because treaties are not legislation. They are treaties made by the executive branch which is why the Senate can't change the threshold (which BTW is 2/3rds, not simple majority) for its approval of said treaties because that threshold is set by the Constitution explicitly on how those two branches have to work in connection with each on said matter (treaties).

        cheers,

        Mitch Gore

        January 20, 2009... the end of an error.

        by Lestatdelc on Thu Jan 28, 2010 at 04:34:41 PM PST

        [ Parent ]

        •  Yes -- but the majority rule is also (2+ / 0-)
          Recommended by:
          sharman, wmholt

          set explicitly. The Senate has never set a rule that a supermajority is actually required to pass legislation.

          Why? Because it can't. The rule is explicit. The filibuster is justified as purely a procedural element -- it's not required to pass a law, it only defines when debate comes to an end for the constitutional passing of laws.

          But if the rule is just a formal end-run on majority rule, it changes character. It isn't any longer a rule about debate -- but an actual change in the character of the body. The authority of the Senate Rules comes from the majority accepting the rules -- not the other way around.

          I think we have plenty of evidence from Senators themselves that they're acting as if the rules weren't on sufferance from the current majority -- but somehow mystically or constitutionally mandated.

          •  No it isn't (0+ / 0-)

            Cite where it is explicitly stated please. There are various times when a 2/3rd vote is required of the Senate (and/or the House) within the Constitution itself. Form treaties, to overruling a veto, impeachment of members of the court, or the President, etc.

            The Senate has never set a rule that a supermajority is actually required to pass legislation.

            Nonsense. The Senate Rule XXII we are all discussion explicitly is that in order too end debate 3/5ths of the Senate most vote to end debate (i.e. the filibuster rule).

            cheers,

            Mitch Gore

            January 20, 2009... the end of an error.

            by Lestatdelc on Thu Jan 28, 2010 at 05:03:21 PM PST

            [ Parent ]

            •  Oh, don't be dense. (1+ / 0-)
              Recommended by:
              wmholt

              I wasn't talking about the constitutionally mandated super-majorities.

              The question is what does the "end debate" rule stand on? It's not magically justified. It's the will of the majority -- the ability of each house to set it's own rules presupposes that those rules come out of standard majoritarian parliamentary procedure.

              That's the only basis upon which a Senator could appeal to outside force -- SCOTUS, the House, or the Presidency, that a Senatorial action was illegitimate. Senate rules aren't laws -- the rules of the body, that can not be appealed outside the body in terms of the rules themselves.

      •  Exactly (0+ / 0-)

        Thank you, kind sir, for carrying on that debate.

        That's it exactly.  The corporate law rule of "ultra vires" is the phrase that always comes to mind.  Just as a senator could not, imo, sell or give his vote away, nor as you said, just as the senate cannot pass a rule that explicitly allows Lieberman to cast their proxies for all votes.  Just so, it is unconstitutional and outside the senators' constitutional powers to give their votes away.

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