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Everyone on this site is talking about reconciliation, passing the Senate bill as is, and various other options in order to get around the de facto 3/5ths supermajority requirement that has been imposed on all legislation for successful passage through the United States Senate.  The 3/5ths supermajority that is now needed to pass legislation through the United States Senate is not only extra-constitutional; in my opinion it is unconstitutional.  And we should demand that Rule 22 of the Senate be ameneded in order to allow a simple majority vote to invoke cloture.  The reasons why Rule 22 of the Senate should be amended in order to allow for a simple majority vote to invoke cloture are discussed more fully below.

Beginning in 1806, the U.S. Senate became perhaps the only parliamentary body to allow unlimited debate when it abolished the motion to move to the previous question.  The filibuster has a history in the U.S. Senate going back to 1837.  That year, going back to As this article by Rick Pildes illustrates, the filibuster was rarely used to block major pieces of legislation that was supported by a majority of the Senate prior to the 20th Century.  In fact prior to 1917, the Senate had unlimited debate with no cloture rule at all; yet narrow majorities of the Senate were able to enact pieces of legislation.  This fact was due to an implicit threat that the filibuster could itself be changed by majority rule if the minority used it to prevent, instead of merely to delay, votes on measures supported by a bare majority.  However, over the decades, the filibuster has changed from a merely procedural rule regarding unlimited debate to a de facto requirement that legislation be supported by a supermajority in order for it to pass.  In fact, under the current Senate Rule, Senators are not actually required to go to the Senate floor and debate the bill in order to filibuster.  They only have to put others on notice of their intent to filibuster.  

The filibuster was used in the 1950s and 1960s to block Civil Rights legislation.  One of the most notable filibusters of the 1960s was when southern Democratic Senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by making a filibuster that lasted for 75 hours, which included a 14 hour and 13 minute address by Robert Byrd (D-WV).  However, this filibuster ultimately failed to block the legislation.  And compared to the frequency with which the filibuster is used today, the filibuster was rarely used in the 1960s.  In fact no Senate term had more than seven filibusters in the 1960s.  By comparison, in the first decade of the 21st century, no Senate term had fewer than 49 filibusters.

Furthermore, because of the fact that Senators are no longer actually required to go onto the Senate floor and debate a bill in order to filibuster, the rule has ceased being procedural in nature and has instead created a de facto requirement that legislation must be approved by a 3/5ths supermajority of the United States Senate in order for it to be passed into law.

The problem with this de facto supermajority requirement is that it conflicts with U.S. Constitution, which makes it clear that the number of votes required for passage of legislation through the United States Senate is a simple majority.  Although the Constitution doesn't explicitly state that a simple majority is the number of votes required to pass legislation, Article I § 3 of Constitution, which states that "[t]he Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided[,]" makes it clear that a simple majority is what the framers intended.

The conventional wisdom of course is that the filibuster and the current cloture rules, which in essence require a super majority in order to pass legislation, is constitutional because Article I § 5 states that "[e]ach House may determine the rules of its proceedings."  However, I believe that the current Senate Rules establishing the de facto super majority requirement for passing legislation goes beyond the procedural rule making power given to each house of Congress in Article I § 5 because it fundamentally alters the process set forth for passing legislation by the United States Constitution.  

To illustrate my point, I will allude to another Constitutional requirement concerning the number of votes required to override a Presidential veto.  As you probably know, Article I § 7 requires 2/3rds of the members of each house to vote for a bill's passage in order to override a Presidential veto.  I highly doubt that anyone would argue with a straight face that either House of Congress has the authority to alter the number of votes required as set forth by the U.S. Constitution in order to override a Presidential veto.  Surely the U.S. Senate doesn't have the authority to require that 75% of its members vote in favor of legislation in order for the legislation to become law in the face of a Presidential veto.  Similarly, it is beyond the pale to think that the Senate could change its rules in order to allow a simple majority to override a Presidential veto.  If such changes to the number of votes required to override a Presidential veto are clearly unconstitutional; how can the current de facto super majority requirement for passing legislation in the United States Senate prior to it arriving on the President's be considered constitutional?

I recognize the fact that such a challenge to Constitutionality of the filibuster is probably doomed to failure.  It is hard to imagine that five Supreme Court Justices would strike down Senate Rule 22 as being unconstitutional.  However, it may be possible to amend Senate Rule 22 so as to require only a simple majority.  Normally it takes 67 votes to change a Senate Rule, but on the first day of a legislative session, only 51 votes are required.  I suggest that we work to put pressure on Harry Reid to Amend Rule 22 on the first day of the next legislative session so that a simple majority can invoke cloture.  Of course the other option is to challenge Senate Rule 22 in court.  As I previously stated, I am afraid that this tactic would be unsuccessful, but even if we lost in court; we may ultimately win in the court of public opinion and force the Senate to act on a Rules change.

Originally posted to bhouston79 on Wed Jan 20, 2010 at 09:43 PM PST.

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Comment Preferences

    •  Article 1 Section 5 (1+ / 0-)
      Recommended by:
      erush1345

      Each House may determine the Rules of its Proceedings

      How is it unconstitutional?

      •  Because changing the number of votes required to (1+ / 0-)
        Recommended by:
        ogre

        pass legislation goes beyond a mere procedural rule change and is instead an actual substantive alteration to our structure of government.  Sure, the House and Senate can have rules concerning how they debate legislation; how they investigate legislation; and how they conduct official inquiries and impeachments, ect. ect., but they can't fundamentally alter our structure of government.

        Would you agree that for example, the House or Senate couldn't alter by Rule (without amending the Constitution) the number of votes required to override a Presidential veto by saying from now only a simple majority is required to override a Presidential veto or that a 3/4ths majority is required to override a Presidential veto?  If so, then how can you argue that it is constitutional to alter the number of votes required for passage of legislation on the front end.

        We have nothing to fear but fear itself

        by bhouston79 on Thu Jan 21, 2010 at 05:26:45 AM PST

        [ Parent ]

  •  I agree (0+ / 1-)
    Recommended by:
    Hidden by:
    SomeStones

    But as long as the Mormon Spy is in power, I doubt its going to happen.

  •  This is saner than all the reconciliation talk (3+ / 0-)
    Recommended by:
    bhouston79, adamsmo, TKLTKL94

    tipped and recced

    ---
    I voted for Nader in 2000. That's how I know progressive purity tests don't work.

    by VelvetElvis on Wed Jan 20, 2010 at 09:48:45 PM PST

  •  No, just ban the fake filibuster (5+ / 0-)
    Recommended by:
    stevej, RanxeroxVox, Jim P, craiger, notrouble

    The filibuster has real purpose in a democracy, because sometimes the majority are just wrong, and there needs to be the ability to throw up a roadblock.

    What is wrong with the filibuster is when a bill has 55 votes and the oposition says "Filibuster" and the other side sits down.

    Acutally, what I've never understood is why the Right is never called on it.  If they want to filibuster, let them.  Let them read the dictionary for 48 hours, and when they all pass out, pass the damn bill.

    The point of the filibuster is to use that 48 hours to turn popular opinion if what's being done is truly wrong.  If the public is behind it, like with the public option, let the nation watch the GOP filibuster healthcare reform.

    We don't need to make the filibuster unconstitutional, we just need a set of balls.

    •  Well my understanding is that the current rules (1+ / 0-)
      Recommended by:
      SomeStones

      allow for a fake filibuster, so once again we need a rule change.  I understand your point about the potential tyranny of the majority, but with all due respect I think the filibuster has been used for more harm than good over the years.  The most infamous filibusters were of course those involving Civil Rights legislation in which the filibuster was being used to continue the oppression of minorities.  Additionally, there are other checks in our system of government to guard against the potential tyranny of a majority.  First, bills have to pass TWO houses of Congress AND either be signed by the President or passed by a 2/3rds super majority of both houses.  Second, there is always the potential for judicial review of unconstitutional legislation.

      We have nothing to fear but fear itself

      by bhouston79 on Wed Jan 20, 2010 at 10:19:27 PM PST

      [ Parent ]

  •  The filibuster is a terrible institution. (3+ / 0-)
    Recommended by:
    JR, J Orygun, VClib

    But it's not in the least unconstitutional.

    Here's law professor Scott Lemieux, as implacable a filibuster foe as you'll find in the left blogosphere (he was arguing against it when Dems were in the minority and the Republicans were threatening the nuclear option) to explain why.

    Thing is, if the filibuster were unconstitutional, it wouldn't be justiciable. So there's really nothing that could be done with the claim that it is....other than get the presiding officer of the chair to so rule. And he'd need a majority of the Senate to back him up.

    And if you have a majority of the Senate against the filibuster, you can just change the rules and get rid of the filibuster without any of the tendentious constitutional rigamarole.  

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

    by GreenSooner on Wed Jan 20, 2010 at 09:56:21 PM PST

    •  With all due respect to Professor Lemieux I (1+ / 0-)
      Recommended by:
      Jim P

      disagree with his assessment.  On the one hand, he acknowledges that "[i]t's true that, as a practical matter, the difference between the vote to cut off debate and votes on the merits has become largely formal" and that while we technically have majority rule, we have a de facto supermajority requirement because of the filibuster.  However, he goes on to argue that since we technically still have majority rule, the text of the constitution is satisfied and the filibuster is constitutional.  I disagree because I think that the constitution requires following its mandates in actuality and not just in formality.  If you take the professor's argument and apply it to the bill of rights, substantative due process (as opposed to procedural due process) goes out the window.

      We have nothing to fear but fear itself

      by bhouston79 on Wed Jan 20, 2010 at 10:11:51 PM PST

      [ Parent ]

      •  The claim that the filibuster is unconstitutional (2+ / 0-)
        Recommended by:
        N in Seattle, JR

        ....makes a hash of Article I, Clause 5, which gives both Houses of Congress the power to set their own rules.

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

        by GreenSooner on Wed Jan 20, 2010 at 10:50:06 PM PST

        [ Parent ]

      •  Hang on--where's majority rule in the US Cons.? (1+ / 0-)
        Recommended by:
        erush1345

        A majority is set as establishing a quorum, but the Senate and House make their own rules as to how debates and votes are conducted.  Why on earth would you think that there's an implicit majority rule when there's an explicit textual grant of power to the two houses to decide that question themselves?

        "When those windmills start to chop people up, tilting at them may not only be rational, but may become a necessity." -arodb

        by JR on Wed Jan 20, 2010 at 11:18:47 PM PST

        [ Parent ]

        •  Majority rule was not only implicitly assumed by (0+ / 0-)

          the founders, but it is also explicitly expressed by Article I § 3 of Constitution, which states that "[t]he Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided."  This text makes it explicitly clear that the founders intended for majority rule to be the modus operandi when passing legislation.  Otherwise, the grant of power to the Vice President to cast a tie breaking vote when the Senate is "equally divided" is meaningless since you don't need a tie breaking vote when a supermajority is required.

          We have nothing to fear but fear itself

          by bhouston79 on Thu Jan 21, 2010 at 05:19:27 AM PST

          [ Parent ]

    •  I wonder what would happen ... (0+ / 0-)

      ... if a majority of Senators just chose to ignore the filibuster in one case to pass Bill X, without actually changing the Senate Rule that establishes the filibuster.  It would seem, then, that someone against whom Bill X is enforced (or who otherwise meets the standing/ripeness/etc. requirements) has a justiciable Case or Controversy to challenge Bill X.

  •  How long will it last when the GOP is in power? (0+ / 0-)

    Not 5 minutes. Count on it.

  •  No more of this "I'ma gonna fillabuster" crap ! (0+ / 0-)

    If they can't/won't get rid of this ridiculous "rule" then make anybody who threatens actually DO IT.

    We keep a quorum on the floor at all times, and don't let them out of the room to use the facilities.

    No food, no drink, no toilet, or else, it's not a fillabuster.

    Screw 'em !

    I must be dreaming...

    by murphy on Wed Jan 20, 2010 at 10:04:52 PM PST

  •  What defines "the first day of a legislative (0+ / 0-)

    session"?  As in a two year period, or does this event occur more often?

    "[W]e didn't elect Democrats to pass crap. We elected Democrats to make a difference"

    --Howard Dean

    by mbayrob on Thu Jan 21, 2010 at 12:30:11 AM PST

  •  I honestly don't know+ (0+ / 0-)

    whether this is a valid plan, because I am far from being a knowledgeable Congressional procedurist.  But it is, at least, a plan, a prospectively possible plan, with a potentially good outcome.

    That makes it a lot better than the other crap I've been seeing on this blog lately.

    Every normal man must be tempted, at times, to spit on his hands, hoist the black flag, and begin slitting throats. H. L. Mencken

    by David R on Thu Jan 21, 2010 at 04:14:06 AM PST

  •  Silliness (0+ / 0-)

    First, the constitution says the two houses can set their own rules. The rules for cloture are included in those rules.

    Second, it's one thing to say, "This is unconstitutional!" It's quite another to get the Supreme Court to grant cert and then get them to agree with you. I doubt they would even touch this case.

    At the beginning of the next session, it's possible that cloture will be watered down. But not because it's unconstitutional.

    Listen, strange women lying in ponds distributing swords is no basis for a system of government.

    by Dbug on Thu Jan 21, 2010 at 05:20:51 AM PST

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