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In the wake of the shameful and immoral filibuster of a watered down background check bill, it's time for Harry Reid and the rest of the Democratic majority to ask the title question, and come up with the right answer.  

Before I start, let me clarify. I don't see how, as a practical matter, the question of the constitutionality of the filibuster could ever come before a court, presumably the Supreme Court. In practice, the Senate itself must settle the matter, and Harry Reid must lead the way (with special emphasis on the word "lead"). My layman's opinion rests on how I believe senators should interpret the Constitution. It is merely a layman's opinion—nothing else.

The validity of the filibuster is said to rest on the authority of the Senate to make its own rules. (Article I Section 5)

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.
Why does the Constitution mention rules? Common sense dictates that there must be rules, and that the Senate itself must write those rules. The answer, it seems to me, is to establish the "meta rules" by which the Senate operates.  The default option must be that a simple majority writes Senate rules. If the Constitution meant the Senate to require, say, a two thirds majority to write or change the rules, it would have said so explicitly, as it does in expelling Senate members. This is what seems to be behind the phrase "the Constitutional option". A simple majority determines the rules.

The Constitutional option is well named. We simply must accept it as an immutable underlying principle, else we could face a paradox. Suppose the senate adopted a "rule" saying that any action by the Senate requires a 75% vote before it takes effect. Once this rule is adopted, it cannot be changed unless 75 senators agree to change it. But what is it that makes the simple majority default rule so special? Let's explore.

Article I, Section 7 says in part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President . . .
The word "passed" in this clause is nowhere defined in the Constitution as specifically meaning "by a simple majority vote", yet this is universal interpretation.

The principle that a governing body makes decisions by a simple majority vote is thoroughly entrenched in our culture. We automatically assume this principle as the default, whether the body is the Paradise, CA City Council, the Elks Club of Baton Rouge, the State Senate of Vermont, or the South Bend Bridge Club. Decisions are made by majority vote; this is bedrock democracy. When a decision must be arrived at, only the "majority rules" principle can guarantee that a decision will be the result.

Does the Senate rules clause have limits? The answer must surely be Yes. Let us suppose the Senate made this rule:

Fifty one votes shall be sufficient to satisfy the "two thirds" requirement to override a presidential veto.
Clearly, the Senate cannot make such a rule, because it contradicts arithmetic. Let's try again:
A vote to override a presidential veto shall be made by roll call vote as stipulated in the Constitution. The judgement of the Senate majority leader as to whether a particular senator has voted "yea" or "nay" shall be final.
This rule contradicts the plain meaning of the English word "vote". (Incidentally, if you think this is a frivolous example, you haven't been following Michigan politics.)

Article I Section 3 states

The Vice President of the United States shall be President of the Senate, but shall have no Vote unless they be equally divided.
Again, the Constitution is using the language of arithmetic ("equally divided") to prescribe the actions of the Senate. The filibuster rule, no matter how it's worded, in fact, contradicts this clause and deprives the Vice President of this constitutionally defined power. All by itself, this demonstrates that the filibuster is unconstitutional.

It's certainly possible to disagree with this argument on technical grounds. The argument can be made that the filibuster is a debate tactic rather than an explicit power to veto a bill or nomination. It rests on the principle that senators, in their deliberations, are entitled to speak to the entire body in order to persuade other senators to their side of the issue being considered. I am using the word "debate" to mean what it means to speakers of everyday English. For the Senate to claim that the filibuster is a debate tactic, rather than an explicit power to veto, contradicts the meaning of the English word "debate". According to present Senate rules, there is not even the theoretical necessity for any activity that corresponds to "debate". This is like stipulating that a senator is present for quorum purposes when that senator is actually playing golf. Logically, the Senate may not make rules that contradict the ordinary meaning of English words. Calling the filibuster a debate tactic doesn't make it so.

Another attempt to justify the filibuster is to argue that it is merely procedural rather than being a veto. The answer to this argument is that it involves a contradiction. We can call a duck a goose, but that doesn't make it a goose. If it walks like a veto, and quacks like a veto, then it's a veto.  

This Wikipedia article gives a good overview of the history of the filibuster. It shows that the filibuster question is extremely complex, both legally and politically. And even if the filibuster didn't exist, there are a variety of parliamentary tactics that can delay any action by the Senate. With just the threat of delaying tactics, the minority can extract significant concessions from the majority on matters of less than overwhelming importance. This is all part of the give and take that is politics, and giving the minority a modicum of leverage is certainly, at least in my view, good governance.

Giving a minority veto power over anything the Senate does contradicts the bedrock principle of democracy. I argue that the Senate may not contradict this principle because it is an intrinsic part of the Constitution, and indeed, of democracy itself.

Just as an example, consider this scenario: A Supreme Court justice retires or dies and the President nominates a replacement. The minority in the Senate routinely filibusters that nomination, and every nomination subsequently made. Their hope is that someday they will gain the presidency and can fill that vacancy themselves. Can you confidently say that the Senate would never do this? Is there some sort of "gentleman's agreement" to prevent it? Good luck with that.

I argue that neither house may constitutionally require a super majority for any particular action. Only the Constitution itself can impose a super majority requirement, as it does in a number of instances. In effect, the Constitution has preempted the use of the super majority. The filibuster, as it currently exists, is therefore, in this layman's opinion, unconstitutional.

Please note that nothing in my argument speaks about the filibuster in its original form of actual extended debate, which is much different from the filibuster as it exists today. As long as the rules of the Senate provide for the eventual decisions by a simple majority, I can accept the filibuster as a debate tactic. I might well disagree on the rules that are adopted for the "talking filibuster", but not on Constitutional grounds.

As noted in the intro, the Supreme Court is highly unlikely to ever consider the question, and the Senate is therefore at liberty to do as it pleases. The fact that Americans hold the Congress in such low esteem seems not to matter at all. The fact that the Senate has adopted rules that contradict the clear meaning expressed in the Constitution seems not to matter either. It is a mystery to me that an overwhelming majority of the public hold Congress in low esteem, yet return them to office every two or six years. We must change this.

What are we Democrats afraid of? Do we believe for a moment that if the tables were turned the Republicans would retain the filibuster? We already know what a "gentleman's agreement" with a Republican is worth. We Democrats (Are you listening, Harry?) must do the right thing and rid the Senate of this rule.

Originally posted to Tim DeLaney on Sun Apr 28, 2013 at 08:00 AM PDT.

Also republished by Community Spotlight.

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Comment Preferences

  •  Yes, the filibuster is constitutional (18+ / 0-)

    I like the diary though.

    We were not ahead of our time, we led the way to our time.

    by i understand on Sun Apr 28, 2013 at 08:14:33 AM PDT

  •  It used to be that there would be unlimited debate (14+ / 0-)

    in the Senate.  Folks would go on and on and on.  then the rules were changed to allow a vote to stop debate and to actually vote.  

    So the rules set a threshold number of votes.  Originally it was two thirds.  Then it got changed to three fifths. Then we got the procedural filibuster and that's when things went all to hell.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Sun Apr 28, 2013 at 08:15:18 AM PDT

    •  As I said . . . (14+ / 0-)

      It is the procedural filibuster that I think is unconstitutional. If you want to actually debate, that's a different issue.

      Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

      by Tim DeLaney on Sun Apr 28, 2013 at 08:20:06 AM PDT

      [ Parent ]

      •  Rule 22, the 1975 changes. (4+ / 0-)

        And make cloture 54 votes.

        .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

        by Roger Fox on Sun Apr 28, 2013 at 09:01:50 AM PDT

        [ Parent ]

      •  I completely fail to see how it's any more (11+ / 0-)

        or less Constitutional than a bill dying in committee.

        There is no Constitutional guarantee that a bill gets a vote.

        "Paid Activist" is an oxymoron.

        by JesseCW on Sun Apr 28, 2013 at 10:23:48 AM PDT

        [ Parent ]

        •  exactly and put more clearly than my (3+ / 0-)
          Recommended by:
          Tim DeLaney, JesseCW, paradise50

          attempted explanation below.

          The Constitution doesn't force the Senate to vote. If a quorum doesn't want to vote, the bill dies.

        •  I (sort of) agree, Jesse (4+ / 0-)
          Recommended by:
          paradise50, Orinoco, ozsea1, Thumb

          The committee system is a reasonable mechanism for separating the wheat from the chaff. Perhaps that system is sometimes abused, but the alternative is worse. Without committees, each house could be swamped with conflicting and overlapping bills.

          OTOH, the filibuster is a mechanism for the minority to thwart the will of the majority once a committee has sent the bill to the full body. I think that's an important distinction.

          Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

          by Tim DeLaney on Sun Apr 28, 2013 at 11:31:19 AM PDT

          [ Parent ]

          •  Now we're just arguing , though, about which (7+ / 0-)

            un-democratic methods we prefer.

            I'm not arguing in support of the filibuster.  But not every shitty thing is unconstitutional.  

            As much as I detest forcing people to purchase corporate products and the pretense that "tax penalties" aren't fines - the Constitution doesn't forbid the Federal Government from doing it.

            If 7 Senators can kill a bill, and we accept that as the Senate exercising its power to make it's own rules, I can't understand why  40 Senators killing a bill is worse.

            "Paid Activist" is an oxymoron.

            by JesseCW on Sun Apr 28, 2013 at 11:41:14 AM PDT

            [ Parent ]

            •  It's not 7 senators out of 100 on a committee (6+ / 0-)

              It's 7 out of 13. And aren't seats doled out based on the size of the party's caucus in the Senate? This is just a smaller version of majority rule, because everything can't be done as a committee of the whole.
              It is not un-democratic at all.

              Seven out of thirteen senators, representatives of their respective parties, is not the same as 40 out of 100 senators. 7/13 = fifty four percent, while 40/100 = forty percent. Fifty four percent is a majority, forty percent is not.

              "The problems of incompetent, corrupt, corporatist government are incompetence, corruption and corporatism, not government." Jerome a Paris

              by Orinoco on Sun Apr 28, 2013 at 01:37:17 PM PDT

              [ Parent ]

            •  In addition (0+ / 0-)

              I would think that the diarist's objection to such procedural maneuvers to stymie legislation would have to apply as well to procedural maneuvers used to force through legislation through pseudo-legislation, e.g. the reconciliation process used for things like Obamacare.

        •  I think the diarist is saying that (5+ / 0-)

          the supermajority requirement of the filibuster imposes a type of veto which is extraconstitutional, and therefore unconstitutional.  

          I think it's an academic argument that will gain no traction.  But it's perfectly valid.  

          Sure, bills die in committee all the time.  But not after they've been voted on and approved by a majority.  

          •  The Filibuster doesn't kill bills after they've (4+ / 0-)

            been voted on and approved by a majority.

            It prevents a vote.

            "Paid Activist" is an oxymoron.

            by JesseCW on Sun Apr 28, 2013 at 11:38:20 AM PDT

            [ Parent ]

            •  If it walks like a veto . . . n/t (2+ / 0-)
              Recommended by:
              paradise50, FightersFate

              Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

              by Tim DeLaney on Sun Apr 28, 2013 at 11:49:07 AM PDT

              [ Parent ]

              •  not getting out of committee (1+ / 0-)
                Recommended by:
                paradise50

                walks like a veto too.

                •  Not getting out of committee (1+ / 0-)
                  Recommended by:
                  paradise50

                  walks like a majority of the committee voting it down. Bills aren't vetoed in committee, they are discussed and voted on. Some win, and are considered by the whole Senate, some lose, and die in committee. But it's not the same as an individual or small cabal thwarting the will of the majority with a veto.  

                  "The problems of incompetent, corrupt, corporatist government are incompetence, corruption and corporatism, not government." Jerome a Paris

                  by Orinoco on Sun Apr 28, 2013 at 01:41:39 PM PDT

                  [ Parent ]

                  •  a majority of a committee (0+ / 0-)

                    is a minority of the senate by a lot more than is required for a successful filibuster.

                    A committee failure means it doesn't even get to the floor to be voted on, a filibuster means it doesn't even get to the floor to be voted on.

                    The "cabal" voting against successfully in committee is SMALLER than the "cabal" needed to vote against it successfully in a filibuster.

                    •  Committee composition represents the whole Senate (0+ / 0-)

                      Seven out of thirteen committee members may vote to kill a bill. Thar's 53% against, 47% for. Majority rules. Comparing the absolute number of committee votes to the total number of Senators is comparing apples and apple pie.

                      It would be the equivalent to a filibuster if 4 or 5 committee members (on our example 13 member committee) could bottle up the bill, rather than a majority of committee members.

                      "The problems of incompetent, corrupt, corporatist government are incompetence, corruption and corporatism, not government." Jerome a Paris

                      by Orinoco on Mon Apr 29, 2013 at 07:07:38 PM PDT

                      [ Parent ]

                      •  come on man (0+ / 0-)

                        that's ridiculous.  Patently ridiculous to try to make the argument that seven members voting to kill a bill is not anti-majoritarian or unconstitutional but 41 members voting to kill a bill is.

                        •  53% is a majority (0+ / 0-)

                          Simple arithmetic. Nothing ridiculous about it at all.

                          You seem to think it is seven Senators out of 100 voting in committee. It is not. Committees are smaller, so the number required is less.

                          Do you think your state does not elect it's governor democratically because there are 300 million people in the United States? That the mayor of your town is not properly elected because your state has so many more voters? That's essentially the argument you are making when you compare voting members in a committee to the total size of the group the committee is drawn from.

                          Your argument does not hold water.

                          Sorry.

                          "The problems of incompetent, corrupt, corporatist government are incompetence, corruption and corporatism, not government." Jerome a Paris

                          by Orinoco on Tue Apr 30, 2013 at 01:23:44 PM PDT

                          [ Parent ]

                          •  I cant tell (0+ / 0-)

                            if you are being purposefully obtuse or just plain dont understand basic math and logic.

                            You are citing a majority of a minority.  You are approvingly citing half of 13 percent while decrying all of 40 percent.

                            You are approving of 7 folks out of 100 killing a bill from being voted on, but agog at 41 folks out of 100 killing a bill from being voted on.

                            This may be the silliest argument I've seen on here, and that's saying a lot.

                          •  Likewise, I'm sure (0+ / 0-)
                            I cant tell  if you are being purposefully obtuse or just plain dont understand basic math and logic.
                            You are consistently conflating committee membership with the entire Senate.
                            7 folks out of 100
                            I don't understand why you believe there are 100 Senators on every committee. That's not how things work. Not only that, it's probably not possible for things to work like that.

                            Again, do you think your state is undemocratic because all 240 million voting age Americans don't get to vote for your governor?

                            That is basically the argument you are making.

                            "The problems of incompetent, corrupt, corporatist government are incompetence, corruption and corporatism, not government." Jerome a Paris

                            by Orinoco on Wed May 01, 2013 at 10:59:14 AM PDT

                            [ Parent ]

                          •  oh for goodness sakes (0+ / 0-)

                            I did not say there are 100 senators on every committee, but the fact of the matter is, out of the 100 senators in the senate, you only NEED SEVEN on a committee to keep a bill from coming to the floor.

                            But you are fine with that because it's seven out of thirteen.

                            But when 41 out of 100, which means you have almost half of the ENTIRE senate block it, SOLELY because of the percentage you have a problem with it.

                            BOTH situations involve blocking a bill coming to the floor.  One you only need seven senators, the other you need 41...but because the committee is only 13, you think mighty fine because the percentage is over 50?

                            That's just ridiculous and nonsensical and illogical.  The logical position to take would be either mine, which is, both are antimajoritarian and that's ok, OR to say that the one that has FEWER senators necessary to block it is worse than the other.

                            Literally the one thing that's nonsensical is to argue the reverse.  so congrats, you've squared the circle.

                          •  Again (0+ / 0-)

                            Do you consider your state undemocratic because all American voters don't get to pick your governor?

                            That is the crux of your argument taken out of the Senate and into another context, and you have yet to address it. Because you can't. You are twisting logic into pretzels to avoid facing a simple mathematical fact.

                            "The problems of incompetent, corrupt, corporatist government are incompetence, corruption and corporatism, not government." Jerome a Paris

                            by Orinoco on Wed May 01, 2013 at 07:53:45 PM PDT

                            [ Parent ]

                          •  I'm done beating my head (0+ / 0-)

                            against the wall that is the idiocy of your argument.

            •  You're right that it doesn't kill bills (2+ / 0-)
              Recommended by:
              Tim DeLaney, paradise50

              ex post facto.  But it doesn't prevent votes either, or at least that is not its primary intended effect.  Rather, it redefines what "passes."  

          •  No, it's not valid (4+ / 0-)
            Recommended by:
            rlochow, Nowhere Man, paradise50, ozsea1

            the idea that anything extraconstitutional is therefore unconstitutional is simply wrong. Some things simply have to be decided on the merits, we can't rely on the Constitution to determine everything.

            What's really funny is that, not so many years ago, Democrats were singing the praises of the filibuster in hopes of using it to prevent Bush from stacking the Supreme Court; trouble is, using the filibuster to stop any branch of government from functioning is not something Democrats could bring themselves to do.

            The use of the filibuster to bring government to a halt is morally wrong and damaging to the social and economic well-being of the country, but that doesn't make it "unconstitutional." Some things (most things, actually) cannot be prescribed by the Constitution, they have to be decided by elected representatives (which means people have to elect decent representatives, something we seem to have lost the ability to do).

            "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

            by Alice in Florida on Sun Apr 28, 2013 at 02:42:26 PM PDT

            [ Parent ]

        •  The House used to have it's own gimmick (1+ / 0-)
          Recommended by:
          JerryNA

          It was called a Disappearing Quorum and worked in the 1800's to prevent votes on issues.  At the time, Democrats were on the less government side and Republicans were on the more active government side but Democrats would used to bring newspapers into the chamber and then refuse to vote en mass, thus depriving the chamber of a quorum to make the vote valid.

          Here's how it got killed in 1890:

          The Speaker of the House Thomas Brackett Reed put this question to the Members: "Will the House consider the resolution?" The yeas and nays were demanded with a result of 162 yeas, 3 nays, and 163 not voting. Democrats, led by Charles Crisp (who succeeded Reed as Speaker in the next two Congresses), then declared that the absence of a quorum (179 Representatives) prevented the House from making decisions. As dictated by House rules for the suggestion of the absence of a quorum, Speaker Reed began an attendance roll call - but directed the Clerk of the House to record as present any Member who was then in the chamber, whether they answered the roll call or not.
          The filibuster is constitutional because I doubt the conservative justices would read the specified supermajority clauses in the Constitution as an exclusive list.  Harry Reid just needs to pull a Thomas Reed and kill this abused tactic himself already.  He'll be called a tyrant and a czar for doing it like Thomas Reed was, but pretty much no one even gives a shit or knows that this minority obstruction tactic existed.

          Proud to share my name with Howard Dean

          by DeanNC on Mon Apr 29, 2013 at 09:34:46 AM PDT

          [ Parent ]

          •  As a follow up, no one complains about House (3+ / 0-)
            Recommended by:
            Jamaste, ferg, JerryNA

            ...not being able to pass shit or function at a basic level due to procedural roadblocks.  It's dysfunction is now purely a result of it being run by teabaggers rather than a minority rump party that has every incentive and opportunity to block and obstruct procedure.

            It's time to just bite the bullet and get rid of it and suffer what may come.  

            If R's win all three branches based on campaigning to privatize Medicare and Social Security, then they should be able to do it and face the voters in the next election.  Likewise, if Dems want to expand medicare to everyone and then have the majority votes to do it, then they should and then face the voters in the next election.

            Proud to share my name with Howard Dean

            by DeanNC on Mon Apr 29, 2013 at 09:41:28 AM PDT

            [ Parent ]

      •  The problem is not the procedural filibuster (2+ / 0-)
        Recommended by:
        paradise50, vcmvo2

        though the fact that such a thing was created is a sure sign of how spoiled/entitled members of the Senate have become; but the real problem is that we have a major party, which holds more than 40 seats in the Senate, which is opposed to having a functioning federal government.

        "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

        by Alice in Florida on Sun Apr 28, 2013 at 02:30:33 PM PDT

        [ Parent ]

  •  Aaaaaahhhh. Logic. How sweet it sounds. (7+ / 0-)

    Oh, I used to be disgusted
    Now I try to be amused
    ~~ Elvis Costello

    by smileycreek on Sun Apr 28, 2013 at 08:18:57 AM PDT

  •  You sold me with this: (13+ / 0-)
    Again, the Constitution is using the language of arithmetic ("equally divided") to prescribe the actions of the Senate. The filibuster rule, no matter how it's worded, in fact, contradicts this clause and deprives the Vice President of this constitutionally defined power. All by itself, this demonstrates that the filibuster is unconstitutional.
    I love the simplicity of this argument.  It cuts right through the murky waters of governmentin' in the Senate. It makes common sense and that just isn't common enough these days.

    Much better reading your diary, Tim, than turning on the brain cells killing pap on the Villagers' Sunday merry-go-round.

    Inspiration is hard to come by. You have to take it where you find it. --- Bob Dylan.

    by figbash on Sun Apr 28, 2013 at 08:28:02 AM PDT

  •  The question is, (18+ / 0-)

    why doesn't Harry Reid do something about this (something, that is, beyond gentleman's handshakes)?

    Oh, I used to be disgusted
    Now I try to be amused
    ~~ Elvis Costello

    by smileycreek on Sun Apr 28, 2013 at 08:28:53 AM PDT

  •  You can't write words in the Constitution (14+ / 0-)

    and then use those words to argue that something is unconstitutional -- based not on what is IN the Constitution, but based on words that you would PUT in the Constitution, but that aren't there.

    Aside from the fact that you can't use "inference" to add provisions that aren't there, the words you would add to the Constitution are by no means the only logical inference one can make.

    The default option must be that a simple majority writes Senate rules. If the Constitution meant the Senate to require, say, a two thirds majority to write or change the rules, it would have said so explicitly, as it does in expelling Senate members
    The word "passed" in this clause is nowhere defined in the Constitution as specifically meaning "by a simple majority vote", yet this is universal interpretation.
    There's no such "default" in the Constitution.  The "default" could just have easily been that "passed" meant "unanimous."  There's nothing in the Constitution, the federalist papers, or anything else that the Constitution intended to put any restriction on what "passed" means other than what is in there.  I think that the only legitimate conclusion, passed on the fact that the Constitution expressly gives the Senate the right to make its own rules, is that "passed" means "passed pursuant to the rules that the Senate set under its Constitutional authority to do so."
    Giving a minority veto power over anything the Senate does contradicts the bedrock principle of democracy. I argue that the Senate may not contradict this principle because it is an intrinsic part of the Constitution, and indeed, of democracy itself.
    The Senate is not supposed to be a direct democracy.  If it were, it would be like the House -- with representation based on population.  The Senate is supposed to be representative if the States -- as in "United States" of America -- which is why, originally, the Senators were essentially appointed by State legislators, not even elected by the people.  It's a gathering of representatives of States, not a gathering of representatives of the people.  And, if you read the writings of the people who designed the Constitution, the Senate was designed to move slowly and to be a check on "the tyranny of the majority."  Read Federalist 10.

    And as zenbasson points out, there used to be  unlimited debate.  The filibuster rule was adopted as a way to stop debate.  

    Senate rules, including the rule that 60 votes can end debate, are clearly constitutional. Whether specific rules, like the filibuster rule, are a good idea is a completely different question.  

    "I think it's a bad idea" is NOT the same thing as "it's unconstitutional."  

    •  You ignore the "evenly divided" clause (6+ / 0-)
      Recommended by:
      paradise50, ferg, rlochow, liz, FightersFate, Dbug
      There's no such "default" in the Constitution.  The "default" could just have easily been that "passed" meant "unanimous."  
      It should be obvious to those who speak English that the framers plainly meant that "passed" meant a simple majority. Otherwise, what can "evenly divided" possibly refer to?

      Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

      by Tim DeLaney on Sun Apr 28, 2013 at 08:53:14 AM PDT

      [ Parent ]

      •  Clearly NOT a limit on what the Senate can do (7+ / 0-)

        in adopting its rules.  

        The provision is in Article I, Section 3, Clause 4, and says:

        The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.   
        Nothing in that sets some limit on what the Senate can do in its rules.  It does not say all Senate procedures must be based on a simple majority vote.  That's a statement of Vice Presidental power in his role as President of the Senate.  It's not a statement that "All Senate votes must be by majority only, not supermajority."

        Think about it this way.  The Constitution says that the Senate has complete power to adopt any rules it wants.  What is being advocated -- that the Constitution puts a significant limit on that power, specifically "All Senate votes must be by majority only, not supermajority" -- is NOT something that would be put into the Constitution by such oblique wording as this.  If the drafters intended put such a significant limit on the Senate rules, the drafters would have said, "The Senate can make its own rules, except that all votes have to be by a simple majority."  It's completely illogical to think the drafters -- who wrote things in a very straight-forward way in the Constitution --  put that significant limit on the Senate's power to make its own rules by "implication."  If that's what they intended to do, they would have said so.    

        •  Article 1 section 5 is so clear (2+ / 0-)
          Recommended by:
          rlochow, paradise50

          SCOTUS would hold Art 1 Sect 5 over any inference about the super majority, say in Art 1 Sect 7.

          I dont think SCOTUS will take the case, it has little or no merit.

          Change the 1975 version of rule 22, require a filibuster to mean a Senator must be on the floor talking, and change cloture to 54 or 55.

          Its simple, and Reid knows it, Obama too. I can only speculate that the ensuing gridlock is desired.

          .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

          by Roger Fox on Sun Apr 28, 2013 at 09:18:04 AM PDT

          [ Parent ]

          •  I would speculate that the ensuing (1+ / 0-)
            Recommended by:
            paradise50

            gridlock is there because there were not 50 votes for making the change in January, and now we would need 60 which we couldn't get even if all Democrats agreed (which I imagine they still don't). I would further guess that more than a few members of the Senate are seriously out of touch with reality--power does that to some people.

            "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

            by Alice in Florida on Sun Apr 28, 2013 at 02:49:14 PM PDT

            [ Parent ]

        •  The following is precisely the issue: (4+ / 0-)
          Recommended by:
          rlochow, paradise50, Sinan, FightersFate
          Think about it this way.  The Constitution says that the Senate has complete power to adopt any rules it wants.
          You have ignored the example I gave:
          Fifty one votes shall be sufficient to satisfy the "two thirds" requirement to override a presidential veto.
          My point was that the Senate does NOT have the "complete power" to adopt any rules it wants. It does not, logically, have the power to contradict arithmetic or the plain meaning of English words. It's power to set its own rules is therefore limited, not complete.

          If your view were correct, the Senate could paralyze all of government forever by adopting the following rule:

          No bill shall be passed, nor any Senate rule modified without obtaining 101 votes in the Senate.
          So, it must be obvious that the Senate's power to establish its own rules is constrained by logic and common sense.

          You can pick nits by saying that this is not a Constitutional limitation, but I would reply that the Constitution implicitly adopts the limitations imposed by logic, arithmetic, and the English language.

          Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

          by Tim DeLaney on Sun Apr 28, 2013 at 09:37:35 AM PDT

          [ Parent ]

          •  Super majority requirements are clearly spelled (4+ / 0-)
            Recommended by:
            JesseCW, paradise50, ozsea1, FogCityJohn

            out.

            IIRC they appear 6 times.

            Beyond that, The Senate makes up their own rules per Article 1 Section 5.

            .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

            by Roger Fox on Sun Apr 28, 2013 at 09:57:20 AM PDT

            [ Parent ]

          •  So, so wrong as a matter of Constitutional law. (7+ / 0-)
            So, it must be obvious that the Senate's power to establish its own rules is constrained by logic and common sense.
            It is only "obvious" that the Senate's power to establish its own rules is constrained by what is in the Constitution.  

            As for this hypothetical rule:

            Fifty one votes shall be sufficient to satisfy the "two thirds" requirement to override a presidential veto.
            There is this in the Constitution:  
            Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
            So your hypothetical rule would be "constrained" by a clear and express provision of the Constitution, not by "logic and common sense."

            There is nothing in the Constitution that prevents the Senate from making its own really, really, really stupid rules.  There is nothing in the Constitution that says the rules the Senate makes must comply with someone's notion of "reason and common sense." As far as the Constitution is concerned, any issue of "logic and common sense" is left  completely and unilaterally in the hands of the Senate who makes the Senate rules.  

            The drafters of the Constitution gave to each branch of government the unilateral -- not reviewable -- right to do certain things, even if with that power, that branch of government also had the power to do those things in a really, really, really stupid way.  That is because the Constitution presumes that elections are the fix if that branch of government does what it has the power to do in a really, really stupid way.  Where the Constitution intended to put a limit on a that branch of government in the exercise of its power, it put that limit in the Constitution.  For example, the Constitution gives the President the power to make certain appointments, but the CONSTITUTION puts the check of "advise and consent" by the Senate.  Where the Constitution puts no such check, there is no CONSTITUTIONAL limit on the exercise of those powers.  We hope that those powers are not exercised in a stupid way, and if they are, our solution is at the ballot box, but there's no CONSTITUTIONAL limit on the exercise of that power.  

            So, yes, technically there's nothing in the CONSTITUTION to prevent the Senate from doing this:  

            No bill shall be passed, nor any Senate rule modified without obtaining 101 votes in the Senate.
            The Constitution assumes that you would not get any kind of agreement among the members of the Senate to do that in Senate Rules.  And we all hope that Senate rules are limited by logic and common sense.  But THE CONSTITUTION does not put some express limitation on the Senate, and THE CONSTITUTION does not provide that Senate rules are constrained by some notion of "logic and common sense."  The Constitution provides that the Senate can adopt whatever Rules the Senate chooses, regardless of whether the rules satisfy "logic and common sense" as you or I see it or not.  If you don't think that the rules satisfy "logic and common sense," your remedy is the vote - that's how the Constitution designed it.
            •  This is where we differ (3+ / 0-)
              Recommended by:
              rlochow, paradise50, FogCityJohn
              But THE CONSTITUTION does not put some express limitation on the Senate, and THE CONSTITUTION does not provide that Senate rules are constrained by some notion of "logic and common sense."  The Constitution provides that the Senate can adopt whatever Rules the Senate chooses, regardless of whether the rules satisfy "logic and common sense" as you or I see it or not.
              In the text of the diary, I made the point that the Senate may not contradict arithmetic or the plain meaning of English words. In my comment, I abbreviated that thought to "logic and common sense". So let's get back to my original words.

              Do you contend that the Senate could adopt a rule that a senator could be counted as "present" for Constitutional purposes even though he might be on the golf course? Now I realize that the Senate COULD adopt such a rule, stupid though it may be. I also realize that the Senate COULD adopt a rule that 2+3 = 6. You might well argue that such a rule is constitutionally valid.

              However, I argue that the Constitution presupposes some things that are not explicitly stated. It presupposes the axioms of arithmetic, even though it does not explicitly say so. It presupposes that a "navy" consists, among other things, maritime assets. The Senate can adopt rules to the contrary, but I argue that those rules must be invalid if they contradict that which the Constitution presupposes.

              If I read you correctly, the Senate can adopt the "rule" that "present" means "On the golf course with a cellphone". You and I can agree that this is nonsense, but you apparently hold that even though the Constitution uses the word "present", that Senators may validly ascribe any meaning they choose to that word, and that the only recourse we have is the ballot box.

              Perhaps you didn't understand the diary. I fully understand that the Senate can make rules, even stupid rules. (This is painfully evident.) I fully understand that there is no court that can--in theory or in practice--invalidate those rules. I said so in the intro. My argument is that Senators, in their deliberations, ought to consider the filibuster, as currently constituted as unconstitutional.

              I do hope that this clears up any misunderstanding between us.

              Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

              by Tim DeLaney on Sun Apr 28, 2013 at 10:56:52 AM PDT

              [ Parent ]

              •  The problem is your use of the word (5+ / 0-)

                "Constitutional."  That means "expressly authorized by the Constitution."  In is not a synonym for "logical," for "smart," or even for "in keeping with the principles of the country." Just like "unconstitutional" is not a synonym for bad, or stupid, illogical or even "not in keeping with the principles of the country.  Unconstitutional means "not authorized by the Constitution" or even "prohibited by the Constitution."  

                Under that standard, there is no question that the filibuster rule is constitutional.

                 My argument is that Senators, in their deliberations, ought to consider the filibuster, as currently constituted as unconstitutional.
                I think what you mean to say is that Senators ought to consider the filibuster as contrary to the spirit of the Constitution, or the intent or principles of the Constitution, or something like that. That conveys that you think that the Constitution was designed to always foster the notion that, in the absence of an express provision otherwise, a simple majority always ruled over the minority.  (It was not, by the way -- read, for example, Federalist Paper No. 10 -- but that's beside the point.)  I wouldn't quarrel with that -- that's your opinion, and I'm fine with you stating your opinion.  That's different from "unconstitutional," which means "not authorized by, or prohibited by, the Constitution."  The filibuster clearly is not "unconstitutional."  
                •  So, what does "unconstitutional" mean? (2+ / 0-)
                  Recommended by:
                  paradise50, vcmvo2

                  "unconstitutional", it seems to me, has but one definition: "Found by a competent body to violate the Constitution"

                  The fact is that any particular action is not "unconstitutional" in the technical sense unless some body (usually the SCOTUS) finds it so.

                  If the Senate were to decide that the (modern) filibuster were unconstitutional, then it would be unconstitutional. The diary is nothing more nor less than urging the Senate to do so.

                  Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

                  by Tim DeLaney on Sun Apr 28, 2013 at 11:46:56 AM PDT

                  [ Parent ]

                  •  Gaps in the constitution... (2+ / 0-)
                    Recommended by:
                    Tim DeLaney, paradise50

                    It is pretty clear that the constitution as it was written did not foresee a time when the Senate could adopt rules that basically stop all legislation from proceeding unless a very difficult test was achieved. If the power of the Senate to stop the efforts of the House and the will of the POTUS was so great as to be superior to the other two bodies on routine matters then why have the 2/3 majority to overide a veto? Just let the Senate figure out what it wanted and hold the other two bodies as hostage. No, this current form of the Senate is a corruption of the intent of the founders and has created a stalemate in one body that far surpasses the need to grant states power. What we now have and could have is tyranny by the states or state if the Senate decided that it needed unanimous consent to pass anything at all. Hardly a workable solution and something neither Madison or Hamilton argued for in the debates.

                    Do facts matter anymore?

                    by Sinan on Sun Apr 28, 2013 at 01:32:48 PM PDT

                    [ Parent ]

                    •  ...I agree, the Constitution stated... (0+ / 0-)

                      ...a simple majority vote for both the House and Senate. The Senate on their own (meaning they had the votes at the time) changed that basic "rule of democracy"...

                      Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences.

                      by paradise50 on Sun Apr 28, 2013 at 02:35:59 PM PDT

                      [ Parent ]

                •  Which of these hypothetical rules ... (0+ / 0-)

                  in your opinion, if any, would be unconstitutional if passed by the Senate?

                  (1) Republicans may not vote.  

                  (2) Republicans are always out of order.

                  (3) The Senate shall be considered to have given its advice and consent if and only if Leader Reid approves.

                  (4) The rules of the Senate may not be further amended.

                  What recourse, if any, could be legally taken by those affected?

            •  Reminds me of the saying, (3+ / 0-)
              Recommended by:
              Tim DeLaney, Roger Fox, paradise50

              "With mutual goodwill, everything is possible." The problem is that the people who wrote the Constitution assumed that the elected and appointed representatives of the People would be decent, fair-minded gentlemen much like themselves, that there would never be a time when the entire process would be subverted by a minority with no interest in governing in any real sense of the word. However, the genius of the Constitution may lie in its vagueness in so many places. It's a guide not a recipe. Since the Senate can adopt rules that must be readopted for each Congress, then why is it such a big deal to make changes? They can easily be changed back in the next Congress. Just try something different and, if it works out, keep it. If the next Congress doesn't like it, the new rule can be scrapped.

              For if there is a sin against life, it consists perhaps not so much in despairing of life as in hoping for another life and in eluding the implacable grandeur of this life. - Albert Camus

              by Anne Elk on Sun Apr 28, 2013 at 11:51:23 AM PDT

              [ Parent ]

            •  that gets the tip (0+ / 0-)
              There is nothing in the Constitution that prevents the Senate from making its own really, really, really stupid rules.
              I must agree. And the rest of the comment sets forth a good argument as well.

              Constitutional Law is in the first year curricula, yes?

              The "extreme wing" of the Democratic Party is the wing that is hell-bent on protecting the banks and credit card companies. ~ Kos

              by ozsea1 on Sun Apr 28, 2013 at 08:09:17 PM PDT

              [ Parent ]

      •  The CLarity of Art 1 Sect 5 (3+ / 0-)
        Recommended by:
        Victor Ward, JesseCW, paradise50

        vs any inference of Art 1 Sect 7 is plain.

        The Court will not take the case.

        Yes, I fear the super majority requirement that is the cloture vote @ 60. IIRC there are only 6 instances where the super majority vote is required. Thats clear -

        The 1975 version of rule 22 is the real issue, to filibuster you must be on the floor and talking. Change cloture to 54 to 55.

        .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

        by Roger Fox on Sun Apr 28, 2013 at 09:11:58 AM PDT

        [ Parent ]

    •  Rule 22 (1+ / 0-)
      Recommended by:
      paradise50

      .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

      by Roger Fox on Sun Apr 28, 2013 at 09:04:38 AM PDT

      [ Parent ]

    •  Hang on. (4+ / 0-)
      Recommended by:
      Orinoco, paradise50, liz, ferg

      The Senate by definition gives power to the states in equal measures for there are only 2 per state and each has equal power. By granting an even smaller minority of voters more power via the filibuster, you are getting state power on steroids. The essence of the Senate was to provide each state with power untethered to population so that the states themselves as political entities could form a power block to support state or regional concerns not tied to a majority of voters or citizens. That requirement is fulfilled because each state has only 2 Senators. To then allow for more power in excess of the few people these Senators might represent is to create a system whereby a few million voters in key small states can basically control the lives of 300 million citizens. If this is what Madison and Hamilton envisaged I would like to see your basis for making this claim. The reality is that our entire system has given inordinate power to the minority via the Electoral College, the primary system, the Senate and seniority rights in the House which give congressmen from very small states tenure unless the state throws them out for some reason. Most of these states keep their Congressmen for a long, long time which leads to even more power granted to these small states. While this entire scheme was needed to get ratification, it has long passed its utility in an age where the nation must solve difficult problems nationally not regionally.

      Do facts matter anymore?

      by Sinan on Sun Apr 28, 2013 at 01:11:20 PM PDT

      [ Parent ]

    •  Coffeetalk: Wrong as usual. (0+ / 0-)

      Whether you're defending religiously based racism and homophobia or expounding on what is supposedly in the Constitution, you never seem able to grasp the facts.  So let's take a look at your arguments, shall we?

      There's no such "default" in the Constitution.  The "default" could just have easily been that "passed" meant "unanimous."  There's nothing in the Constitution, the federalist papers, or anything else that the Constitution intended to put any restriction on what "passed" means other than what is in there.

      But actually, there is.  In fact, it's right there in Article I, section 5, clause 1:

      Each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business[.]
      So it's right there in the Constitution.  A majority of each house constitutes a quorum, and under well established common law rules, a majority of that quorum is empowered to enact laws.  (See, e.g., FTC v. Flotill Products, 389 U.S. 179, 183 (1967).)

      As for your claim that there's nothing in the Federalist Papers about this, I'm afraid James Madison would disagree.  He addressed this issue in Federalist No. 58:

      It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.
      Finally, your argument about inferences runs counter to every accepted principle of statutory construction of which I am aware.  Courts commonly make negative inferences from the existence of certain language.  Thus, the diarist relies on rock-solid principles of statutory construction when s/he notes that we may infer that majority rule should be the default in the Senate, because the Constitution specifically prescribes certain instances in which a supermajority is required.  Since the Framers clearly knew how to provide for a supermajority when they wished to do so, we may quite properly conclude they did not intend to require supermajorities in other instances.

      It is you, not the diarist, who appear unfamiliar with the relevant provisions of the Constitution, the Federalist Papers, and general principles of interpretation.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Mon Apr 29, 2013 at 10:03:06 AM PDT

      [ Parent ]

  •  ...boy, it is constitutional?... (1+ / 0-)
    Recommended by:
    Tim DeLaney

    ...kinda murky. It's like those contests "will it float or not" that David Letterman used to do on his show.

    The fact the Senate can make it's own rules (and no rules are constitutionally NOT allowed), I guess I have to side on the YES side of the equation ONLY because it isn't expressly NOT allowed under the Constitution.

    That is until some Supreme Court in the future decides otherwise.

    But I think the Supreme Court can only determine if a law or bill (which gets signed into law) is constitutional or not...

    Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences.

    by paradise50 on Sun Apr 28, 2013 at 08:56:43 AM PDT

    •  The wont take the case, I'm certain. (4+ / 0-)
      Recommended by:
      JesseCW, ferg, paradise50, misslegalbeagle

      .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

      by Roger Fox on Sun Apr 28, 2013 at 09:05:42 AM PDT

      [ Parent ]

    •  it's a gentleman's agreement (2+ / 0-)
      Recommended by:
      paradise50, Tim DeLaney

      The Senate agrees never to hold an official vote unless they can count 60 votes. It's perfectly constitutional for the Senators to never hold a vote. Bills with majority support can die in committee. Same thing.

      But if the Senate does vote on a bill, and it passes by majority then it passes, despite any Senate rules to the contrary. Same with confirmations. The Senate could vote at any time on a confirmation, and majority will decide.

      The filibuster only exists because Reid and a majority of the Senate want it to exist.

    •  ...and the US Senate is considered to be... (6+ / 0-)
      Recommended by:
      Tim DeLaney, ferg, radmul, Orinoco, Roger Fox, Sinan

      ...nearly the least democratic institution in the entire world (only three countries are considered to be less democratic than the US Senate...and that list doesn't include only democratic countries, but all countries!!!)

      And here's why: I live in California. We had 38,000,000 people. We have two votes in the Senate. You can gather up 21 other states with low populations that add up together to 38,000,000, YET those 21 states with the same population total get 42 Senate votes.

      The US Senate had nearly nothing to do with democracy, if democracy is majority rules...

      Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences.

      by paradise50 on Sun Apr 28, 2013 at 11:53:36 AM PDT

      [ Parent ]

    •  The SCOTUS has ruled repeatedly (0+ / 0-)

      that is NOT a matter for the Judiciary.  They just threw out the Common Cause v Biden case earlier this year.

      The Constitution explicitly empowers Congress to make its own rules.  The End.

      People are too readily equating the legal definition of "Unconstitutional" to "Not How I Think Things Should Work".

      The Senate could pass a rule that no bill shall be considered "passed" unless the sponsor wore a special Red Hat during the vote.  And some landmark bill enacting Single Payer Healthcare or something could pass 97-3 and be nullified because Barbara Mikulski forgot to wear the hat and that would be: LEGAL.  100% legal and constitutional.  Stupid.  Embarrassing.  Asinine.  .. all true, but it would be LEGAL if those were the established rules of the Senate.

      And all the "People's Rights shouldn't be able to be held up because of a stupid hat!" arguments in the world wouldn't make a difference.

      Красота спасет мир --F. Dostoevsky

      by Wisper on Mon Apr 29, 2013 at 07:21:05 AM PDT

      [ Parent ]

  •  Some history (3+ / 0-)

    The Filibuster cam about thru Aaron Burr, thinking was to clean up the overly complex Senate rules, the Previous question motion was used to move on to the next bill, this was removed, and over time this lead to gridlock, circa 1915.

    Then rule 22 was implemented, this required a cloture vote to end debate- 66 votes, changed in 1975 to 60 votes and allowed the threat of a filibuster to equate an actual talking filibuster.

    IIRC only 6 situations use the super majority, one of them is overriding a Presidential Veto. None involve the Filibuster.

    I doubt that SCOTUS would take the case, if they did, Article 1 section 5 is clear and would carry sway over anything inferred by Article 1 section 7, Re: Super majority votes like overriding a veto.

    Cloture can be changed to 55 or 54 votes. The original purpose of Rule 22 was to prevent gridlock. The requirement of 60 votes to end debate creates gridlock in todays Senate.

    Example, the recent background check bill that failed in the Senate. If Cloture was 56, we had 54 votes with Reid voting no for procedural reasons. Call it 55.

    If the Whip count was 55, and the bill needed one more vote, then some twisting would be effective, needed 5-6 votes dilutes the effectiveness of arm twisting.

    IF Reid or Obama told 4 Senators they would get a favor, maybe some grant money for their home state.... if only the first Senator to take the deal gets the favor, that pressure can gain you one more vote.

    The need for super majority votes are clearly defined and its clear the filibuster was a mistake.

    But for some reason Reid et al see no reason to break gridlock and lower the cloture vote to 54.

    .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

    by Roger Fox on Sun Apr 28, 2013 at 09:00:48 AM PDT

    •  Roger, you point out, correctly, that (4+ / 0-)

      I did not make myself clear enough. I do not contend that the historic filibuster -- meaning extended debate -- is unconstitutional. I think it is clear that the Senate may make whatever rules it thinks fit to regulate debate.

      I do contend that the present rules in which a minority is able to kill an action without even a semblance of debate is unconstitutional.

      Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

      by Tim DeLaney on Sun Apr 28, 2013 at 09:10:56 AM PDT

      [ Parent ]

      •  Right, the 1975 version of rule 22. (2+ / 0-)
        Recommended by:
        Tim DeLaney, paradise50

        that allows the threat of a filibuster.

        I dont see that its unconstitutional, but it is a BFD. See my other comments.

        .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

        by Roger Fox on Sun Apr 28, 2013 at 09:20:23 AM PDT

        [ Parent ]

    •  Background check bill was NOT a filibuster (4+ / 0-)
      Recommended by:
      Roger Fox, VClib, rlochow, paradise50

      The attempt at a filibuster had already been overcome.

      Instead, Sen. Reid passed by unanimous consent a requirement that all amendments, including the Background Check Amendment (it was technically an amendment, no a bill) be passed by 60 votes. (He could have asked for 51 or 52 votes.)  He set the bar at 60 votes for all amendments (including what you called the background check bill) because he did not want pro-gun advocates to be able to pass THEIR amendments.  

      Full explanation is here.

  •  What do you think of this: (3+ / 0-)
    Recommended by:
    leema, Tim DeLaney, paradise50

    The Constitution envisions three branches: executive, legislative and judicial.

    Of the legislative branch, there are two co-equal, bi-cameral, separate by equal bodies: the house and the senate.  But the filibuster gives the senate an anti-majoritarian veto of the house's bills without any authority to do so.  This violates separation of powers as set forth by the Constitution.

    "To recognize error, to cut losses, to alter course, is the most repugnant option in government." Historian Barbara Tuchman

    by Publius2008 on Sun Apr 28, 2013 at 11:42:53 AM PDT

    •  sounds good to me on the face of it. n/t (2+ / 0-)
      Recommended by:
      Tim DeLaney, paradise50

      “... there is no shame in not knowing. The problem arises when irrational thought and attendant behavior fill the vacuum left by ignorance.” ― Neil deGrasse Tyson, The Sky Is Not the Limit: Adventures of an Urban Astrophysicist

      by leema on Sun Apr 28, 2013 at 11:50:08 AM PDT

      [ Parent ]

    •  or, the Senate is passive-aggressive (2+ / 0-)
      Recommended by:
      Tim DeLaney, paradise50

      A tacit majority opposes taking responsibility for passing the bill, which is why it fails, but they allow a straw vote where the passive-aggressive members can vote a meaningless "yes" knowing it will fail.

      (I'm not certain I'm using passive-aggressive correctly.)

    •  No. (0+ / 0-)

      The balance of power is to equalize the three branches, not one chamber versus the other in the Legislature.

      The chambers are not 100% equal anyway.  For one, the Origination Clause gives exclusive power to the House on matters of revenue.

      Two, there is no single person anywhere within the Legislative branch that has more power than the Speaker of the House.  The Parliamentary Rules of the House gives the single person of Speaker wide-ranging powers that can be used to solely dictate the course of legislation.

      This is legal because these rules were enacted via the Rules Committee and it is how the House chooses to govern itself.  The same can be said about the Senate, its empowered minority, the filibuster, the open debates and the byzantine Amendment process.

      Everyone is free to dislike any or all parts of this process, but to attribute unconstitutionality is a farce.

      Красота спасет мир --F. Dostoevsky

      by Wisper on Mon Apr 29, 2013 at 07:10:45 AM PDT

      [ Parent ]

    •  Senate already has anti-majoritarian veto (0+ / 0-)

      Even if you leave the votes in the Senate at simple majority, the number of citizens represented by those 51 votes could easily be well short of 50% of the citizens of the country as a whole.

      There are people here who think that having some power doled out on a per-state basis is Bad Government, but I disagree. In any case, it's clear that the Founders thought that having a non-representative house was a good check on the whims of the mob (in particular from a populous sub-region of the country forcing the rest into a bad decision), so it doesn't much matter what we think about the anti-majoritarian nature of the Senate. Absent a Constitutional amendment to change apportionment of Senators, this is the government we have.

      As to the original topic, it seems to me that the Senate can create whatever rules they like regarding what bills will get an actual vote. The results of those votes would seem to be majority-rules unless declared otherwise by the Constitution, but the process can be whatever they want.

      Keep in mind that what seems like common sense to you might not be so to others. The reason that the Senate won't pass a rule stating that 101 votes are required is that no majority in the Senate is going to think that is common sense. It is much less clear to me that the Senator on the golf course with a cell phone is in fact bad government, and in any case making the final call is not a clear-cut choice in either direction.

      Freedom of the press is supposed to constrain bad decisions by the government. Separation of powers is supposed to constrain bad decisions by one branch of the government. Nothing prevents powerful special interests buying up all the votes necessary to accomplish their goals, which is what we're really unhappy about.

  •  For all practical purposes, it is (3+ / 0-)

    Constitutional as long as the Senate says it is Constitutional. Due to the political questions doctrine, no Court would come within a mile of any case or controversy arising out of a challenge to the filibuster.  Article I, Section 5 provides more than enough justification for a court to decide that any such case is non-justiciable.

  •  if this argument lies (2+ / 0-)
    Recommended by:
    Tim DeLaney, paradise50

    then so does requiring a bill to get out of committee to come to the floor.

  •  Nice argument, but it falls apart right here: (4+ / 0-)

    When discussing "the filibuster", it is IMPERATIVE that you understand Senate Rule 22 and what exactly you mean when you use the term "Filibuster".

    The US Senate explanation starts here, at the US Senate Virtual Reference Desk.

    So, like most of the known world, you begin your argument on FILIBUSTER CLOTURE and cloture votes, under US Senate Rule 22 by conflating CLOTURE and FILIBUSTER.

    Let me assist you:

    Filibuster
    Using the filibuster to delay debate or block legislation has a long history. The term filibuster, from a Dutch word meaning "pirate," became popular in the United States during the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill. (endless debate)
    Cloture
    The cloture rule–Rule 22–is the only formal procedure that Senate rules provide for breaking a filibuster. A filibuster is an attempt to block or delay Senate action on a bill or other matter. Under cloture, the Senate may limit consideration of a pending matter to 30 additional hours of debate.
    Now we get to to the meat of your argument: that filibuster CLOTURE votes requiring more than the 51 vote simple majority inferred by Article I, Section 3 and this language:
    The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.
    are not Constitutional.

    Your argument conflates VOTES on BILLS (to create or void Laws) with the vote required to uphold or deny a CLOTURE Motion, to END debate.

    Since Article I, Section 5

    Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
    clearly allows each House of the Congress to write it's own "rules of proceedings" there is no question...

    The Cloture Rule (Senate Rule 22) is Constitutional.

    FYI - the Filibuster is not even a named US Senate Rule. It is merely an historically recognized action allowed by US Senators when speaking on the Floor of the Senate, and that action is simply "endless debate". You will NOT find the word "Filibuster" anywhere in the Constitution, because it is a recognized by un-enumerated action available only in the US Senate (the House does not recognize "endless debate").


    "I like paying taxes...with them, I buy Civilization"

    by Angie in WA State on Sun Apr 28, 2013 at 12:27:21 PM PDT

    •  Angie, I agree that the cloture rule is (3+ / 0-)

      Constitutional, because the Senate FINDS it Constitutional. I should have entitled this diary "Should the Senate regard the filibuster as Constitutional?"

      In addition, I perhaps should have drawn a brighter distinction between the modern filibuster and the traditional filibuster which involved actual debate.

      Note that in the intro, I said:

      My layman's opinion rests on how I believe senators should interpret the Constitution.
      Constitutionality is not a property; it is a finding by a body competent to rule on constitutionality. This diary urges the Senate to find the modern filibuster unconstitutional.

      Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

      by Tim DeLaney on Sun Apr 28, 2013 at 12:49:46 PM PDT

      [ Parent ]

      •  Modern filibuster as defined by the 1975 version (3+ / 0-)
        Recommended by:
        paradise50, Wisper, Angie in WA State

        of rule 22.

        .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

        by Roger Fox on Sun Apr 28, 2013 at 01:55:59 PM PDT

        [ Parent ]

      •  semantics (0+ / 0-)
        My layman's opinion rests on how I believe senators should interpret the Constitution.
        Constitutionality is a legal definition and the the House and Senate are not authorized to determine Constitutionality of any bill or process.  That is the job of the Judiciary.

        Representatives and Senators can't even be held liable for acting unconstitutionally.  Their laws could be struck down by the courts, but they themselves can only face electoral consequences from their constituents and can not be charged, in any way neither during nor after their time in office, for acts they committed in the due course of their office.

        Красота спасет мир --F. Dostoevsky

        by Wisper on Mon Apr 29, 2013 at 07:03:16 AM PDT

        [ Parent ]

    •  Only times a super majority votes is required (3+ / 0-)
      Recommended by:
      paradise50, Wisper, Angie in WA State

      are specifically spelled out. 6 times IIRC. Veto overrides etc.

      SO Article one, Section 5 should hold sway because it so clearly spells out... make your damn rules. Except for these 6 other situations which are specifically outlined.

      Article one section seven spells out how to override a Presidential veto, which is hardly germane to cloture votes but some have used this citation to make the argument, and it too fails.

      Your argument conflates VOTES on BILLS (to create or void Laws) with the vote required to uphold or deny a CLOTURE Motion, to END debate.
      Really the crux of the issue.

      .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

      by Roger Fox on Sun Apr 28, 2013 at 01:54:20 PM PDT

      [ Parent ]

  •  If a tree falls in a forest, and no one is (4+ / 0-)

    around to hear it...does it make a sound?  

    This case will never be decided by SCOTUS, so this is an irrelevant discussion at the end of the day.  

  •  What you are proposing is constitutional (2+ / 0-)
    Recommended by:
    Tim DeLaney, paradise50

    autopilot, where everything is based on the Constitution rather than the decisions of elected representatives--really, the problems we have today cannot be avoided by trying to parse everything wrong as "unconstitutional" somehow. There is no replacement for electing representatives who are sane and have the best interests of the country at heart--unfortunately there seems to be a major problem achieving that these days.

    "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

    by Alice in Florida on Sun Apr 28, 2013 at 02:55:50 PM PDT

  •  See the Common Cause v. Biden case (2+ / 0-)
    Recommended by:
    Tim DeLaney, paradise50

    http://www.commoncause.org/...

    I (and CC) agrees with your reasoning.  God bless Bo Edgar.

    To be free and just depends on us. Victor Hugo.

    by dizzydean on Sun Apr 28, 2013 at 03:09:31 PM PDT

  •  Tipped for use of "minority veto" (2+ / 0-)
    Recommended by:
    Tim DeLaney, paradise50

    Recc'ed for bringing attention to the Michigan travesty.

    Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

    by GeoffT on Sun Apr 28, 2013 at 03:14:52 PM PDT

  •  Does anybody really believe that Republicans (3+ / 0-)
    Recommended by:
    Tim DeLaney, paradise50, Crider

    Will allow a Democratic Minority to exercise the filibuster the way that this Republican Minority has in the past 5 years?  As soon as we see a Republican Majority, we will see the end of the filibuster!

    "Stupidity got us into this mess, then why can't it get us out?" Will Rogers offering advice to the Republican Party.

    by NM Ray on Sun Apr 28, 2013 at 03:37:01 PM PDT

  •  hope (0+ / 0-)

    I can see what a super majority of right wing crazy can do--I live in NC.  We have to hope that there are some Rs that are still normal--and are not treasonous.  They might not have the guts to counter their leadership (?) with a no vote--but might feel empowered to vote to keep the institution (Senate) traditional.  The filibuster is a pain in the ass now--could be a life saver down the road.  It is possible the Rs win the Senate and keep the House next year, do you really want them to run wild?  Do you expect the president to veto everything?  Are you sure 2016 goes our way?
    Careful what you want--especially when the opponent is without ethics, patriotism, or compassion.  Going nuclear might seem smart in the short run--but it does tend to blow up in your face.

    Apres Bush, le deluge.

    by melvynny on Mon Apr 29, 2013 at 05:43:55 AM PDT

  •  The filibuster is not constitutional (0+ / 0-)

    The tenth amendment:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    The Senate can not make rules which give it more power, including more power than the House. It is just a matter of time until a House impeaches the members of the Senate who collude in a filibuster.

    The Senate might fail to convict with a 2/3 majority of the original membership, but the impeached members will not be able to vote.

    The Senate will not act to return its stolen powers, but the House certainly can act to reclaim its own.

    One body can not set rules which permit one of its members to control the passage of legislation with greater power than a member in the other body. The Constitution, except where specified, grants each member only simple majority voting power in the respective body.

    The only winning move is not to play. - Joshua

    by FightersFate on Mon Apr 29, 2013 at 06:11:34 AM PDT

    •  Not only is this wrong: (1+ / 0-)
      Recommended by:
      eparrot
      One body can not set rules which permit one of its members to control the passage of legislation with greater power than a member in the other body.
      but it has nothing to do with the 10th Amendment.

      Each chamber makes its own rules.  The House arguing that the Senate's open-ended parliamentary system of debate is excessive would be akin to the Senate arguing that the House's Parliamentarian Rules grant excessive and abusive authority to the Speaker.  

      This is not argument that can be legally made.  Each chamber has identical authority in legislation (with a slight tip to the House via the Origination Clause) and is to be governed by THEIR OWN SELF-MADE RULES.  Period.

      Красота спасет мир --F. Dostoevsky

      by Wisper on Mon Apr 29, 2013 at 06:58:48 AM PDT

      [ Parent ]

  •  No legal basis for this argument. At all. (0+ / 0-)

    Words have meaning; and legal words have legal meanings.

    Saying nonsensical things like:

    The filibuster rule, no matter how it's worded, in fact, contradicts this clause and deprives the Vice President of this constitutionally defined power. All by itself, this demonstrates that the filibuster is unconstitutional.
    does not help your argument. The VP has tie-breaking authority on actual votes.  All procedural votes, amendment processes, parliamentary motions, etc are done by the self-governed Rules of the Senate, created solely by Senators as Constitutionally mandated.

    These kinds of arguments, and there seems to be more cropping up lately, are nothing more then far-left wishful thinking.  

    Красота спасет мир --F. Dostoevsky

    by Wisper on Mon Apr 29, 2013 at 06:54:33 AM PDT

  •  They Can Write Any Rules They Want (1+ / 0-)
    Recommended by:
    ferg

    However, I think you are correct that the Constitution ultimately forces the decision to be made by a simple majority. My position continues to be that any Senator can bring a bill to the floor defining the rules under which it will be considered. They could bring a bill that specifies that each Senator will have a specified amount of time to debate it (putting a limit on time) and that it will be passed by a simple majority.

    Technically, someone might object. If they did, the chair should rule the bill in order and direct it be considered under the rules it specifies. That ruling is subject to a vote of the Senate, but it is not debatable and the ruling is upheld by a simple majority. Thus, by bringing a bill under what I call "constitutional rules", a majority of the Senate can act.

    But, this is just as unlikely a scenario as that the SCOTUS would rule on the Senate rules. Not a technical problem, it's just that I don't think a majority of Senators have the moxie to do it this way. If you have a group of spineless wimps you can't expect them to stand up for anything.

  •  Strikes me its neither - constitutional nor (0+ / 0-)

    unconstitutional.   The Senate can write whatever rules it wants for its own procedure, but based on the Constitution, a 51 member majority can changes whenever they see fit.  Its a political question not a constitutional question.

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