Senate rules requiring 60 votes to stop a filibuster and remove a hold on a bill have upset the very fragile balance between the three branches of government. Important pieces of legislation are never brought to a vote and Federal judges and political appointments remain unfilled, often for years, due to these Senate rules that are not part of the Constitution.
Many of the holds and filibusters are on the President’s nominations for Federal Judges and political appointments which he is Constitutionally required to make. The Senate is responsible to “advise and consent” on the President’s nominees but the they never come to vote because of Senate rules. There are currently 80 Federal Judgeships vacancies with 43 pending nominations including some positions that have been vacant since January of 2009. The unfilled seats have caused a log-jam of cases in the Federal Court system where there is over an 11-month wait for cases to be heard (if I were waiting trial I would sue government for violating the right to a speedy trial.) In addition to Federal Judges waiting confirmation, the Senate also stalls political appointments for the Executive Branch. By March of 2010 (the President Obama’s first year), 217 nominations were sent to the Senate for confirmation, but the 77 who had cleared the appropriate committees were still these waiting for a vote the others had not cleared committee votes. While the Senate stalls so does the business of the Federal government.
Each Branch of government has work to do including presiding over criminal and civil cases, overseeing departments, and enforcing laws of the land but the Legislative branch is preventing the Judicial and Executive branches from doing theirs thus shifting the balance of power to the legislature (specifically the Senate.) The use of these rules by the minority Republicans has skyrocketed since 2005.)
In recent years, the filibuster and holds are used by the minority Republicans in nearly every bill, and every nomination put forth by the majority Democrats. The number of cloture filings (motion to end filibuster and holds) increased from 68 in 109the Congress (1/05 – 12/06) to 139 in the 110th Congress (1/07 – 12/08) when the Democrats took over as majority in the Senate. The number remained nearly the same for the 111th Congress at 137 motions filed. So far during the 112th Congress (since the beginning of 2011) 46 motions have been filed (I believe the drop is due to the Senate Democrats not putting forth any bills and not willing to file cloture motions.)
This procedural mechanism was intended to protect the minority from getting trampled without their voice being heard but it has become a political weapon used to prevent the majority from conducting business. This very powerful rule is not mentioned in the Constitution.
The filibuster, holds, and cloture motions are not part of the Constitution but Senate procedural rules which the Senate is allowed to adopt. Article I Clause 2: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
However the Constitution makes no mention of what rules to add or how many votes it would take to invoke cloture. These rules were never intended to override the Constitution by requiring more than a majority of votes to pass. The Constitution specifically mentions only 4 instances in which more than a majority is needed to pass legislation; Treaties, Constitutional Amendments, overriding a veto and removing a person from office. The absence of other specific supermajority requirements, along with other clauses in the Constitution it is apparent that founders intended most legislation only require a majority (other than specified);
Article 2 Section 3 Clause 1: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”
Article 2 Section 3 Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
These two clauses together show the intent of the founders that most of the legislation put forth in the Senate would be passed but majority with each Senator having one vote. Because there is always an even number of Senators the founders anticipated there would be ties in voting, and allowed for the Vice President to break the tie. If the founders intended a supermajority be needed to pass legislation there would be no need to break ties.
The Senate is allowed to make their own rules, however they are not allowed to make rules which usurp the Constitution. The Democratic Party majority does have an option called “the nuclear option” in which Senate majority can suspend the rules if they feel “the Constitution requires the majority be effective on specific duties and procedures” but this rarely used in fear of retribution when the majority is loss. I say dump the rules! Allow for spirited debate by the minority but don’t let the rules overrun democracy and just get rid holds all together.
Our country is facing lots of problems and this may seem like a minor one, however I feel this is undermining the “Checks and Balances” principle on which our government was created. Please call, write, email your Senators and urge them to suspend and change Senate rules!!!
The Humanity Triangle