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Will the impetus for filibuster reform come from across the street?
Filibuster reform is back in the news. Or at least, talk of reform is back in vogue.

Now there's a renewed effort to revive another avenue of reform: the courts.

A lawsuit filed Monday by Atlanta-area Democratic U.S. Reps. John Lewis and Hank Johnson, among others, argues that the 60-vote hurdle to conduct Senate business is unconstitutional because it subverts the idea of majority rule.

[...]

Filed in federal court in Washington, the suit argues that the filibuster gives a minority of one legislative chamber veto power over all three branches of government, by allowing frequent blocking of executive and judicial nominees.

The suit focuses in particular on the failure to pass the Disclose Act and the Dream Act.

I'm not hugely optimistic about the prospects of the suit, simply because federal courts are normally loathe to get involved in the business of the political branches, particularly (you would think) where internal, procedural rulemaking is concerned. Nor am I 100 percent convinced it's a great idea to throw Congressional rulemaking open to the Roberts/Scalia judiciary. But I'll admit it was fascinating and enjoyable discussing the idea with lead counsel in the suit, Emmet Bondurant (who recently laid out his case to Ezra Klein), at an NYU Law school panel on filibuster reform a few years ago. (Brag, brag, brag! Yes, sometimes your Cheeto-munching front pagers masquerade as Very Serious People.)

Still, at the very least, perhaps the threat of outside forces acting on the Senate rules will be a motivating factor for the senators to clean their own house, before anyone else—particularly another branch of government (and one arguably in the unaccountable hands of conservative ideologues, at that)—takes the opportunity to do it for them.

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Comment Preferences

  •  Is majority rule in the Constitution? (7+ / 0-)

    Off the top of my head, I don't think it is.

    Romney '12: The Power of Crass Commands You!

    by Rich in PA on Thu May 17, 2012 at 05:04:31 PM PDT

    •  I though the Constitution was actually designed (2+ / 0-)
      Recommended by:
      Rich in PA, ManhattanMan

      todesigned to thwart majority rule. I sem to remember the words of Al Hamilton about the People being "a great beast".

      Fructose is a liver poison. Stop eating it today.

      by Anne Elk on Thu May 17, 2012 at 05:08:04 PM PDT

      [ Parent ]

    •  Read the link that says (2+ / 0-)
      Recommended by:
      Rich in PA, mightymouse

      "laid out his case to Ezra Klein." It's a great argument and it answers your question.

      Your left is my right---Mort Sahl

      by HappyinNM on Thu May 17, 2012 at 05:17:25 PM PDT

      [ Parent ]

    •  What's in there. (4+ / 0-)
      Recommended by:
      ferg, mightymouse, jgilhousen, Simplify

      What's in the Constitution is a careful detailing of the kinds of votes that actually do require a supermajority, and what that supermajority should be.

      When it's not in there, there's a reason, and it likely means something.

    •  Yes, Article I Section 3 Clause 4 states that (6+ / 0-)
      The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
       If the Vice President is to cast the tie breaking vote when the Senate is "equally divided" then it is clear that the founders did not intend for the Senate to be able to require a super-majority in order to pass legislation.  IMHO the filibuster has ceased being a mere procedural rule and instead has become a de facto requirement that any meaningful legislation obtain a super majority of 60 votes.  This super majority distorts the Senate's power to block legislation  that has majority (but not super majority) support in a way that was not intended by the founders and is contrary to the plain language found in Article I Section 3 Clause 4 of the Constitution.

      We have nothing to fear but fear itself

      by bhouston79 on Thu May 17, 2012 at 05:40:53 PM PDT

      [ Parent ]

      •  of course (1+ / 0-)
        Recommended by:
        cybersaur

        60 votes only needed to pass Democratic legislation

      •  Bad interpretation (0+ / 0-)

        Look, I would like to see the filibuster nuked from orbit, but it isn't unconstitutional and trying interpret when the VP gets to vote as proof that the founders wanted simple majority rule just falls well short. There's simply nothing in the Constitution about the houses of Congress needing simple majorities to pass legislation. And there's nothing about requiring 60 votes in the Senate that would run contrary to when the VP gets to vote. You can simultaneously require 60 votes for passage and roll out the VP should any votes end up 50/50. Wouldn't change the outcome, but it also doesn't violate the clause you cited.
        The Constitution says the Senate can make its own rules and that's exactly what the filibuster is. It's a rule made by the Senate, so it is 100% Constitutional.
        The lawsuit is well intentioned, but without merit. Ultimately, it is unnecessary. What we really need are 51 Democrats with functional frontal lobes to vote in favor of a simple rule change that would eliminate the abused filibuster and defacto minority rule.

        --- Keep Christian mythology out of science class!

        by cybersaur on Fri May 18, 2012 at 09:20:30 AM PDT

        [ Parent ]

    •  There's THIS: (2+ / 0-)
      Recommended by:
      mightymouse, Simplify

      From Article 1, Section 3:

      The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
      (Emphasis added.)

      If you can tell me how that works without a simple majority vote, I'll send you a No-Prize.

      If it's
      Not your body,
      Then it's
      Not your choice
      And it's
      None of your damn business!

      by TheOtherMaven on Thu May 17, 2012 at 05:49:37 PM PDT

      [ Parent ]

    •  Read the Klein link (0+ / 0-)

      An ambulance can only go so fast - Neil Young

      by mightymouse on Thu May 17, 2012 at 06:10:57 PM PDT

      [ Parent ]

    •  Constitution says nothing about majority rule, (1+ / 0-)
      Recommended by:
      cybersaur

      it only asserts where a supermajority is required (ie overturn a veto, conviction on impeachment). It talks about how 3/5 of a slave counts towards a representative's numbers, so a man with 5 slaves gets 4 votes worth of influence with his rep, while a guy that hires 5 workers gets only one and his workers can do what they please. But it says nothing about how many votes a rep gets in their body, even though it very specifically stipulates that senators each get one vote in that body. That was to make it clear they represent the states, not the people. That didn't change until the XVII amendment in 1913 provided for direct election of senators, but without the needed structural changes in senate rules. I think the founders (unlike the GOP flounders) took it for granted that a simple majority generally ruled, thus a framework was necessary for protection from a tyrannical majority. It's sort of what logic and math and all that stuff points to. However, in the absence of respect for the majority, the framework yields a tyrannical minority.  

  •  DOA (8+ / 0-)

    But a fun publicity stunt.

    Fructose is a liver poison. Stop eating it today.

    by Anne Elk on Thu May 17, 2012 at 05:06:06 PM PDT

  •  How Often Have There Been Suits Similar to This (1+ / 0-)
    Recommended by:
    ManhattanMan

    over behvior of branch(es) of government?

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu May 17, 2012 at 05:08:50 PM PDT

  •  Dream, dream, dream...♫ (1+ / 0-)
    Recommended by:
    ManhattanMan
    perhaps the threat of outside forces acting on the Senate rules will be a motivating factor for the senators to clean their own house
    No, it will just become another way for the Repubs to rail against "judicial activism", and for the Dems to avoid real action on their own.

    "Ridicule is the only weapon which can be used against unintelligible propositions." - Thomas Jefferson

    by rfall on Thu May 17, 2012 at 05:09:50 PM PDT

  •  Let's pause to reflect... (6+ / 0-)

    ... on how much more could have been achieved in Obama's first term without the filibuster:

    1) A bigger stimulus and so lower unemployment.

    2) Health reform with a public option and more regulations to keep the insurance companies honest

    3) Finance reform with teeth, a strong Volcker rule and much stronger derivatives regulation

    4) Climate change legislation similar to what passed the House (a big one for me)

    5) The DREAM Act

    And so on and on.  This is why filibuster reform is the single most important reform that we can pass.  I don't even care if it benefits the Republicans first, because I truly believe our ideas are the right ones.  And once we get into the majority again and can pass them robustly, people will back us.  

    •  You Must Be One of Those Not Immediately (1+ / 0-)
      Recommended by:
      Sparhawk

      threatened by the kinds of laws Republicans will be passing. People who are older, sick, in other sensitive situations are going to be profoundly injured while the sands of time blow on waiting for the right side to prevail.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Thu May 17, 2012 at 05:13:56 PM PDT

      [ Parent ]

      •  I'm sorry (5+ / 0-)

        but I see that as a poor argument.  I believe in majority rules, whether that helps me or hinders me.  And I am very personally affected by which side wins.  But I and many future generations are affected by the lack of complete progress on some very important issues.  As long as we have the filibuster, we can never pass something as important to the world as climate change legislation.  Not without it being held hostage by the likes of Lieberman and Nelson.  Do you have any better suggestions?  

        And just to be clear, I fully support President Obama.  My beef is completely with the Senate rules, which should have been changed long ago.  And the Republicans have made that even more clear in the last few years.  They don't intend to let us get anything serious done if they can help it.  

      •  This thinking makes no sense at all. (1+ / 0-)
        Recommended by:
        cybersaur

        What makes you think there's a causal link between what the Dems do in the next session and the the Reps do if they win a Senate majority? Does their current behavior lead you to think they'll stop at anything to grab as much power, legitimate or not, as they possibly can? Or that the Dems playing nice again will dissuade them? Guess you haven't gotten the memo about the Reps being the forces of evil, not guests at some faculty coffee klatch.

        In America, a rising tide lifts all yachts and drowns the workers who built them.

        by DaveW on Thu May 17, 2012 at 06:01:04 PM PDT

        [ Parent ]

      •  ReThugs use the filibuster with abandon (1+ / 0-)
        Recommended by:
        cybersaur

        the Dems not so much. filibuster works to the R's advantage.

  •  The Dems May Repeal It Themselves. (1+ / 0-)
    Recommended by:
    dfe

    I don't think they want progressives hounding them to block the Republicans once they're 1+ votes in the minority. That's my take from Harry Reid speaking out on it as loss of their majority is a serious possibility.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu May 17, 2012 at 05:12:04 PM PDT

  •  Article I, Section 5 (3+ / 0-)

    "Each House may determine the rules of its proceedings[.]"  

    An actual vote is passed with a majority, but the Constitution explicitly allows the Senate to require more than that to end debate or let a bill hit the floor.

    The study of law was certainly a strange discipline. -- Yukio Mishima

    by Loge on Thu May 17, 2012 at 05:13:36 PM PDT

    •  Then let them. (1+ / 0-)
      Recommended by:
      mightymouse

      If the Senate may determine the rules of its proceedings, then why can't they have a vote on it?

      Because the rules don't allow them to do what Art I, sec. 5 says they're supposed to be allowed to do.

      And that's a problem.

      •  i'm not saying the filibuster (3+ / 0-)
        Recommended by:
        auron renouille, VClib, cybersaur

        is a good idea, but this lawsuit is unworthy of the people filing it.  The flip answer is that the Senate can set its own rules on whether it has a vote on ending the filibuster, for all the third branch cares.

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Thu May 17, 2012 at 05:35:41 PM PDT

        [ Parent ]

      •  they can vote on it, David. (1+ / 0-)
        Recommended by:
        VClib

        that's exactly what the nuclear option is.

      •  They did vote on it (the rules). (2+ / 0-)
        Recommended by:
        wilderness voice, cybersaur

        The determination of the rules occurs as the first order of business in a new session.  They can be changed there by simple majority vote.  They didn't.

        However, I believe that the courts will decline to hear the case as Article 1, Sect. 5 effectively tells the courts judicial branch to butt out of any rules intervention in either Chamber.

        Now, about a practical solution to that filibuster thing.

        I question Mr. Reid's sincerity, since Harry is remorseful about the 'gentleman's agreement' with McConnell, why isn't Reid using his ability to employ the Nuclear Option at any point during the session and get things moving within the rules.  

        I've read that he's employed it already once previously in this session, I see absolutely no reason to stop him from doing it everyday.   All it takes is a ruling from the chair (always a Democrat) and a simple majority vote when the ruling is appealed by the other side.  All Harry has to do is to whip the Dems into line to affirm the decision of the Chair.

        ... the watchword of true patriotism: "Our country - when right to be kept right; when wrong to be put right." - Carl Schurz; Oct. 17, 1899

        by NevDem on Thu May 17, 2012 at 06:29:50 PM PDT

        [ Parent ]

    •  But it doesn't allow them to create a de facto (1+ / 0-)
      Recommended by:
      mightymouse

      requirement of a super majority to pass legislation.  Article I Section 3 Clause 4 states:

      The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
      This clause makes it clear that under the Constitution a majority (or even an evenly divided Senate so long as the Vice President votes yeah) must be permitted to pass legislation.  

      We have nothing to fear but fear itself

      by bhouston79 on Thu May 17, 2012 at 05:47:41 PM PDT

      [ Parent ]

      •  so? (1+ / 0-)
        Recommended by:
        johnny wurster

        that's if there's a vote on final passage.  I discussed that point already.  If a de facto supermajority is all there is, not only can the Senate do it but there's not a justiciable question in my view.

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Thu May 17, 2012 at 05:50:09 PM PDT

        [ Parent ]

        •  Sure there's a justiciable question. (0+ / 0-)

          The U.S. Supreme Court held that Congress couldn't delegate its powers to the President when it struck down the line item veto.  Why should the Senate be able to require a super majority to pass legislation when the Constitution clearly states that it only takes a majority to pass legislation in the Senate.

          If the filibuster rule hadn't become a de facto super majority requirement and was instead merely used to extend debate (but ultimately allow an up or down vote), then I would tend to agree with you regarding its Constitutionality.  But now that it has clearly become a de facto super majority requirement fundamentally altering the balance of power set forth in the Constitution between the two chambers of Congress it is clearly unconstitutional.

          We have nothing to fear but fear itself

          by bhouston79 on Thu May 17, 2012 at 05:56:50 PM PDT

          [ Parent ]

          •  i don't think that's analogous. (0+ / 0-)

            the senate is delegating powers to itself.  One point of confusion is that while the senators mostly understand the cloture vote to be the real vote on the bill, but literally, only a majority is required to pass the bill once it comes to the vote.  The court wouldn't be called upon to resolve a contradiction between the housekeeping clause and the tie-breaking clause.  Anyway, your standard creates a huge line-drawing problem.  At what point does a de facto anything come into being?  A senate exercising its judgment to end or limit or preserve the filibuster can draw that line wherever it wants, but I think as far as the judiciary is concerned, it's either always constitutional or never constitutional.  When it was used, it always had that implied supermajority effect, it just used to be rarer.

            The study of law was certainly a strange discipline. -- Yukio Mishima

            by Loge on Thu May 17, 2012 at 06:03:43 PM PDT

            [ Parent ]

    •  Maybe, maybe not. (0+ / 0-)

      Could the Senate pass a rule depriving female senators of their votes?

      There has to be some limit on the sorts of "rules" that they can determine.

      It has already been shown that this year's Senate cannot bind next year's Senate. (For example, passing a bill that specifies that only a super-majority can repeal it)

      By the way, I am in the middle of reading this guy. I don't agree with him, but if you want a good lay-out of the facts of this issue and some good case citations, he seems to have it pretty together.

      •  no, but that would violate a separate (1+ / 0-)
        Recommended by:
        Sparhawk

        constitutional provision that's explicit.  The article discusses the example of a senate rule that's separately unconstitutional, but that example just illustrates the difference between the hypo you mentioned and the filibuster itself.  At root, it's a bootstrapping argument, where the filibuster is unconstitutional, and thus reviewable by the courts, because it's unconstitutional.  The separate constitutional provision at issue can't be that of lack of a pure majority.

        I know those two dudes very well :)

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Thu May 17, 2012 at 05:54:12 PM PDT

        [ Parent ]

      •  No, they could not (0+ / 0-)
        Could the Senate pass a rule depriving female senators of their votes?
        Nope. Because the Constitution clearly states that each Senator gets one vote.

        --- Keep Christian mythology out of science class!

        by cybersaur on Fri May 18, 2012 at 09:29:09 AM PDT

        [ Parent ]

  •  So... (0+ / 0-)

    ...Common Cause will cheerlead President Obama's nomination of Miguel Estrada to be a federal judge? After all, the filibuster is what kept him off the bench and since the filibuster is such a horrible and undemocratic thing, you know, shouldn't this 'wrong' be 'righted'?

    Besides, I think the filibuster is a good thing. It makes the Senate slower and more deliberative and less likely to just pass whatever you can get 50+1 votes for.

    Also, there is no way a court is going to let this move forward. None. It's a giant waste of money for high paid lawyers.

    (-5.50,-6.67): Left Libertarian
    Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

    by Sparhawk on Thu May 17, 2012 at 05:19:38 PM PDT

  •  here's the problem IMO (3+ / 0-)
    Recommended by:
    Sparhawk, Loge, cybersaur

    1. We KNOW that majority rule is not guaranteed by the Constitution because the Constitution itself prescribes several ways in which a super-majority is required.

    2. The fact that they list times when it is required does not mean that internal rules cannot establish others.

    3. A cloture vote is not a vote on legislation, it is a vote to end debate. The Constitution clearly leaves the right to determine how the houses of Congress set up the rules for debate to Congress.

    IF this were a situation where they were requiring majorities on votes on actual legislation, I would agree, but this is on motions to end debate.

    I wholeheartedly agree that the filibuster has been grossly abused, and like any other rule, it can be changed by the Senate (and we've had at least one opportunity to do it and balked), but I do not see any argument that it is unconstitutional.

    •  I'm not here to defend the suit. (1+ / 0-)
      Recommended by:
      mightymouse

      As I said, it's not my favorite approach to reform. But Emmet makes a detailed case for their position, and you should take a look at what he's got to say.

      There's no doubting that internal rules of the Senate can differ from the minimum basic requirements in the Constitution. But the problem that arises is that the Senate ends up not being able to exercise its rule making prerogatives. There are only about two still-serving Senators who had, prior to last January, ever had an opportunity to cast a vote on the cloture rules. That's a fairly serious "dead hand" problem.

      •  no they are able to (0+ / 0-)

        if Reid wanted to, he could make them read the phone book etc, and personally I think he should do that.

        I mean not sure what there is to read that counters the facts I laid out, other than yes I am sure that the current setup is not good, but not good does not mean not constitutional, anti-democratic doesn't even per se mean not constitutional.

      •  There's a big hole in his argument (1+ / 0-)
        Recommended by:
        johnny wurster

        on p.508, where he acknowledges the Senate's rule that it sets its own procedures.  He has two possible ways around it, either that the filibuster is a substantive, not a procedural rule (which is both wrong and probably runs right into the political question doctrine); or that it violates some other part of the Constitution.  But that last argument is circular (and not argued for) -- it presumes that the inability to proceed to a majority vote is its own violation.  

        The argument has some power in that most senators understand a vote on cloture as "the real" vote, and have for some time, but the housekeeping clause and presentment clauses (and almost every other bit of judicial review case law) keep the Court from looking at subjective intent of legislators.  (see p.511).  The framers also didn't understand these rules to permit a minority to block legislation, but I'm not in the business of paying more attention to their intent versus the text itself.  They didn't foresee a lot of things.

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Thu May 17, 2012 at 05:47:01 PM PDT

        [ Parent ]

    •  Majority rule in the Senate is guaranteed by the (0+ / 0-)

      Constitution.  Article I Section 3 Clause 4 states:

      The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
      This clause clearly implies that only a majority (or even an evenly divided Senate) is required to pass legislation.  The de facto super majority now required as a result of current Senate rules violates the plain language of this clause.

      We have nothing to fear but fear itself

      by bhouston79 on Thu May 17, 2012 at 05:50:28 PM PDT

      [ Parent ]

      •  no (2+ / 0-)
        Recommended by:
        Sparhawk, cybersaur

        that clause anticipates exactly what it says, if there's a tie, then he breaks it.

        The Constitution goes on to say other things, that directly go against the idea of 51 being all you need.

        If the Founders wanted to guarantee majority rule, they could have just said "all votes will be by majority rule."
        It's not a complicated concept. It's not like figuring out whether the right to bear arms means you get automatic weapons.

  •  The GOP will likely have (2+ / 0-)
    Recommended by:
    Sparhawk, Bailey2001

    51 Senate seats next year, and still hold the House.  They'll be able to pass party-line bills through both houses and while Obama can veto some, he can't veto them all. What if Romney is elected? I'm not sure this is a good time to be eliminating the filibuster. We may need the damn thing for a while. What they should do is just eliminate it effective 10 years from now. Maybe phase it in. It's a good way to get both sides to agree.

    •  If that's the case, and we want or need it... (3+ / 0-)
      Recommended by:
      ferg, WisePiper, cybersaur

      Republicans will eliminate it.

    •  Yeah (0+ / 0-)

      But of course support will immediately die then, because the principal objection to it among liberals is that liberal legislation isn't being passed.

      If the Senate is 51+ Repubs next year, watch how there are zero more diaries about how terrible it is on here, and in fact diaries like 'Dems must filibuster blah legislation' will start showing up.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Thu May 17, 2012 at 05:33:59 PM PDT

      [ Parent ]

    •  Naturally (3+ / 0-)
      Recommended by:
      ferg, mightymouse, pickandshovel

      Because this is what Democrats do.  They finally get political power only to wrap the ball in nice paper and put a bow on it before giving it to the Republicans.

      I swear I don't see how the Democrats could be any less competent politically.  Why don't they just pass a law saying any Republicans that get elected automatically get lifetime terms?

      The time to make this change was January of 2009, not a few months before a contentious election.

      But I guess it doesn't matter, because if the Republicans gain a majority, getting rid of the filibuster will be their first official act.

  •  This action has zero chance of success (0+ / 0-)

    But I wonder what would happen if Senate filibustered an attempt to eliminate the filibuster rule. In that case, 51 Senators would have at least a chance of crafting a winning argument. Free Enterprise Fund v. Public Company Accounting Oversight Board, a 2010 Supreme Court case, provides a possible analogue.

  •  If this suit keeps the filibuster abomination (1+ / 0-)
    Recommended by:
    mightymouse

    in the spotlight, it will be well worth doing, win or lose. The stories on the suit don't explain what exactly the plaintiffs are asking for: abolishing the filibuster? Forcing certain changes? Going back to the drawing board? In any case, maybe the publicity will finally wake Americans up enough to demand a return to some semblance of democracy.

    The commentariat routinely treats the filibuster as if was born with the Constitution, when in fact it's a modern invention designed to facilitate the grandstanding and insider dealing that senators so love. I don't think they're afraid of what Reps will do if it's gone -- they feel that they'll lose one of the self-aggrandizing ploys that let them maintain their boys' club for the elite. Its labyrinthine byways, like the handshakes and symbols of "civic clubs" and gangbangers, makes them feel even more special.

    There is probably good reason for keeping a way to put the brakes on a runaway legislative train, but this extremist garbage is not the answer. At the very least, it can limit such interference to actual votes on the bill, and put the burden of sustaining filibuster on the minority, not the majority, and it can allow other business to proceed as normal in the meantime.

    Until then, the Dems don't have to wait for rules changes or lawsuits to shake things up. All they have to do is announce and enforce a new rule for their own caucus: you're of course free to vote your conscience on any bill, no matter how stupid or harmful. But fail to vote for cloture on one of our bills and all hell breaks loose on your head: your committee assignments, support from the dscc, defense against opposition attacks, everything will vanish like smoke in a windstorm for the remainder of your term.

    In America, a rising tide lifts all yachts and drowns the workers who built them.

    by DaveW on Thu May 17, 2012 at 05:54:25 PM PDT

  •  IMHO this is yet another instance in which (2+ / 0-)
    Recommended by:
    mightymouse, Simplify

    the default assumptions of the Founding Fathers weren't spelled out, because nobody thought they needed to be spelled out - and later generations completely lost the context and screwed things up.

    The default assumption was obviously simple majority vote unless explicitly specified otherwise. We've screwed that up so badly that we are in direct conflict with Article 1, Section 3 of the Constitution, which explicitly grants the Vice-President of the United States the power to break tie votes. If there are never any tie votes because nothing is ever decided by majority vote, the Vice-President has no role in the Senate at all - despite the Constitution explicitly stating that he does.

    If it's
    Not your body,
    Then it's
    Not your choice
    And it's
    None of your damn business!

    by TheOtherMaven on Thu May 17, 2012 at 05:57:59 PM PDT

  •  Ezra Klein link is great (2+ / 0-)
    Recommended by:
    Simplify, cybersaur
    In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.

    That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution. “Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant writes.

    So pre-1840, no filibusters. Majority ruie in the Senate. And from 1840 to 1900, 16 filibusters.

    And now we have a filibuster for everything - de facto requirement for a supermajority on every question.

    At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.
    and goes on to list some arguments by Madison and Hamilton in the Federalist Papers ...
    In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. And as Bondurant writes, “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    An ambulance can only go so fast - Neil Young

    by mightymouse on Thu May 17, 2012 at 06:10:26 PM PDT

  •  moronic lawsuit. (0+ / 0-)

    I hope the lawyers involved are sanctioned.

  •  I'd be embarrassed to bring this case. (2+ / 0-)
    Recommended by:
    Loge, archer070

    I mean, I get the big idea of trying to do something rather than nothing, but there is really no legal precedent here.  The few precedents cited by the WaPo article are plainly inapplicable.

    [T]he Court held that while “the Constitution empowers each house to determine its rules of proceedings,” it “may not by its rules ignore constitutional restraints or violate fundamental rights.”
    I haven't yet heard a "constitutional restraint" being cited, and a "fundamental right" is a  technical term with specific meaning relating to the Bill of Rights and the 14th Amendment - no individual whose fundamental rights have been violated through application of cloture rules can be cited.

    In Bondurant's article, he frames the issue in a dishonest fashion:

    The notion that the Framers of the Constitution intended to allow a minor- ity in the U.S. Senate to exercise veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth.
    Was the filibuster on the mind of the drafters?  Probably not.  But it is completely settled law that the Congress may set its own rules within Constitutional bounds.  So I don't disagree with Bondurant on that point - there was no right to unlimited debate in the English Parliament.  But it takes an absurd leap to get from "no right to unlimited debate" to reading an additional unwritten clause into the Constitution that, in invisible ink, articulates permitted and prohibited parliamentary rules.

    I also don't disagree that an unconstitutional rule is plainly justiciable.  By way of example, the Senate probably could not by its own rules refuse to sit an individual protected by the equal protection clause.  It probably could not establish its own term limits.  Those issues are plainly justiciable.

    But for this suit to be credible, I'd have to be convinced that the Senatorial majority vote is a fundamental right.  And Bondurant just doesn't get there; he skipped that step.  It's not enough to prove that the rules are probably justiciable.

    "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

    by auron renouille on Thu May 17, 2012 at 06:42:20 PM PDT

  •  And what of the "nuclear option?" (0+ / 0-)

    During the Bush Administration, many posters here, myself probably included, screamed blood murder when the GOP Senate leadership tried to change Senate rules to get Bush's courtpacking judges confirmed.

    How is this different?  In two or four or six years, will we be talking about "filibuster reform?" Or the "nuclear option?"

    History is written by the victors, and quite simply, we cannot be the victor in every single Senatorial election.  So which do we prefer?  The ability to block truly horrible judges and terrible laws?  Or the ability to get our laws passed and judges confirmed?

    Can't very well have it both ways.  I see strong arguments to both; I don't know where I sit on this as a procedural issue (as a Constitutional issue, this lawsuit is an embarrassment).  But arguing against the "nuclear option" and in favor of "filibuster reform" requires a certain cognitive dissonance that we need to be aware of.

    So which is it?

    "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

    by auron renouille on Thu May 17, 2012 at 06:45:51 PM PDT

    •  Not nuclear if it's the start of session (0+ / 0-)

      It was nuclear then because it was mid-session, and it would've required the chair and the majority to overrule the parliamentarian and declare the filibuster out of order.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Fri May 18, 2012 at 02:04:15 AM PDT

      [ Parent ]

  •  Look the filibuster is bad now but the filibuster (0+ / 0-)

    will be our best friend should we ever get a Senate full of tea baggers running things.

    So keep the filibuster around for the time we have 51+ insane Senators taking over my government.

    •  There's no historical support for that (0+ / 0-)

      Democrats do not employ the filibuster nearly as often as the GOP. It's not even close. In fact, many, if not most, Democrats are perfectly happy to vote in favor of even some of the most odious republican legislation. So, while the GOP abuses the filibuster to block good legislation, it is a completely unsupported assumption that Democrats would use it to block horrendous teabagger legislation. In the final analysis, it is a net plus for the good guys to cast the filibuster into the dust bin of history.

      --- Keep Christian mythology out of science class!

      by cybersaur on Fri May 18, 2012 at 11:17:18 AM PDT

      [ Parent ]

  •  How to Get Rid of Filibusters (2+ / 0-)
    Recommended by:
    Simplify, gtomkins
    •  That nuclear option (1+ / 0-)
      Recommended by:
      Liberal Thinking

      Your earlier post basicly outlined the nuclear option.

      One consequernce that would follow if the nuclear option is actually valid, is that the lawsuit is not going anywhere.  If any and all Senate rules can be overturned by a simple majority of the Senate at any time, then the filibuster rule does not create a para-Constitutional requirement for supermajorities on any votes beyond those the Constitution says require supermajorities.  A simple majority still gets to assert itself.  It just has to use a preliminary vote canning the filibuster before it can proceed to the simple majority vote on the bill in question.

      If its rules can be overturned at any time by the simple majority that the Constitution calls for for most votes, then the Senate could have rules that grant or deny Senate passage to bills based on any random criteria they care to establish.  They could put in a rule that says that a coin should be tossed and "heads" means passage, and "tails" means defeat.  As long as that rule has the ongoing support of the majority, then whatever the coin toss decides is actually the will of the majority.

      We should have destroyed the presidency before Obama took office. Too late now.

      by gtomkins on Fri May 18, 2012 at 04:51:27 AM PDT

      [ Parent ]

      •  It's a Good Argument (1+ / 0-)
        Recommended by:
        gtomkins

        But, as I read it, that's exactly what the Constitution says. It says that each house is competent to make its own rules. Therefore, "They could put in a rule that says that a coin should be tossed and 'heads' means passage, and 'tails' means defeat."

        Only the people of the United States would be able to do anything about it--by voting sufficient numbers of silly Senators out of office.

        If my procedure makes the lawsuit invalid (which it actually does), I'm happy for that because it also makes the filibuster invalid. My reading of this is that the Constitution leaves each house with majority rule. Any majority in the Senate can therefore go back to the Constitution at any time and reboot the system.

        •  Any structure would be unconstitutional (1+ / 0-)
          Recommended by:
          Liberal Thinking

          The filibuster is far from the only rule, of either chamber and not just the Senate, that prevents all proposed laws from getting a simple majority vote.  If you have a committee structure that assigns all proposed bills to be evaluated by some committee, and only allowed to proceed to a floor vote if they pass a committee vote, then you have prevented the majority from prevailing even more effectively than the filibuster does.  If you let leadership move only some bills to final consideration, and the clock to run out on others, then you have denied majority rule even more effectively than the filibuster.  If you have any structure or order at all to Senate proceedings that keeps any random entity from introducing any bill he or she chooses, and as many as they choose, and don't require a simple majority up or down vote on each and every one, that order and structure is more effective at frustrating majority will than the filibuster.

          What keeps the filibuster and all of these other rules in step with the Constitutional requirement that both chambers decide all but six defined types of vote by a simple majority, is that all of these rules can be set aside at any time by the constitutionally prescribed simple majority.  Both bodies need rules and regular order to allow them to function at all, but any such order has to have the effect of keeping some things from being voted up or down by the full chamber.  The saving grace that keeps all such rules in line with majority rule is that the majority can set aside any rule when it has the effect of frustrating that majority's will, rather than facilitating it by making it possible for the chamber to run smoothly.

          This lawsuit may not make any valid points against the filibuster, but it does have this effect of exposing the notion that the nuclear option is arguably a necessary feature of all rules in either chamber.  A simple majority has to be able to repeal any such rule at any time, or the constitutional mandate for settling most votes by simple majorities is arguably violated.

          We should have destroyed the presidency before Obama took office. Too late now.

          by gtomkins on Fri May 18, 2012 at 08:06:35 AM PDT

          [ Parent ]

  •  The nuclear option (0+ / 0-)

    The famous nuclear option for ending the filibuster is premised on the idea that a simple majority of the Senate can eliminate the filibuster merely by upholding the chair on a parliamentary point if the chair rules that an attempt to filibuster is out of order.

    One consequernce that would follow if the nuclear option is actually valid, is that the lawsuit is not going anywhere.  If any and all Senate rules can be overturned by a simple majority of the Senate at any time, then the filibuster rule does not create a para-Constitutional requirement for supermajorities on any votes beyond those the Constitution says require supermajorities.  A simple majority still gets to assert itself.  It just has to use a preliminary vote canning the filibuster before it can proceed to the simple majority vote on the bill in question.

    If its rules can be overturned at any time by the simple majority that the Constitution calls for for most votes, then the Senate could have rules that grant or deny Senate passage to bills based on any random criteria they care to establish.  They could put in a rule that says that a coin should be tossed and "heads" means passage, and "tails" means defeat.  As long as that rule has the ongoing support of the majority, then whatever the coin toss decides is actually the will of the majority.

    We should have destroyed the presidency before Obama took office. Too late now.

    by gtomkins on Fri May 18, 2012 at 04:55:32 AM PDT

  •  Also (0+ / 0-)

    The filibuster may be unconstitutional as it removes the president of the senate as a tiebreaker in many votes.

    •  Does not (0+ / 0-)

      VP can still vote in a tie. Won't make a damn bit of difference, but it does not "remove[s] the president of the senate as a tiebreaker in many votes."

      --- Keep Christian mythology out of science class!

      by cybersaur on Fri May 18, 2012 at 12:04:12 PM PDT

      [ Parent ]

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