Editore"s Note
Tilting at Windmills

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January 11, 2010

IT'S PROBABLY UNCONSTITUTIONAL, TOO.... Arguments against Senate filibusters are no doubt familiar to you by now. They're undemocratic; they make governing next to impossible; they breed cynicism; they undermine American competitiveness; etc.

What you may not have heard is the argument that requiring supermajorities to pass legislation through the Senate is arguably unconstitutional. Thomas Geoghegan makes a very compelling case in the New York Times, noting the ways in which the U.S. Constitution -- which makes no reference to filibusters -- is at odds with a system that allows 41 senators, representing just over 10% of the U.S. population, to "block bills dealing not just with health care but with global warming and hazards that threaten the whole planet." The "routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders' intent." (via Kevin Drum)

First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments. With so many lawyers among them, the founders knew and operated under the maxim "expressio unius est exclusio alterius" -- the express mention of one thing excludes all others. But one need not leave it at a maxim. In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule.

Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are "equally divided." The procedural filibuster does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties. With supermajority voting, the Senate is never "equally divided" on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote. The procedural filibuster effectively disenfranchises the vice president. [...]

Third, Article I pointedly mandates at least one rule of proceeding, namely, that a majority of senators (and House members, for that matter) will constitute a quorum. Article I, Section 5 states in part that "a majority of each shall constitute a majority to do business." Of course, in requiring a simple majority for a quorum, the founders were concerned about no-shows for a host of reasons -- not least of all because the first legislators had to travel great distances by stagecoach.

But the bigger reason for the rule was to keep a minority from walking out and thereby blocking a majority vote. In Federalist No. 75, Hamilton dismissed a supermajority rule for a quorum thus: "All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority."

It would be illogical for the Constitution to preclude a supermajority rule with respect to a quorum while allowing it on an ad hoc and more convenient basis any time a minority wanted to block a vote. Yet that is essentially what Senate Rule 22 achieves on any bill that used to require a majority vote.

Reads like a pretty tight case to me.

Of course, challenging the constitutionality of the oft-abused procedure is inherently tricky. Getting standing to file suit would be difficult, and the courts would be reluctant to consider a procedural matter from a co-equal branch of government.

But if there were a court case, Geoghegan's argument would, I suspect, be quite persuasive.

Steve Benen 4:05 PM Permalink | Trackbacks | Comments (33)

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Comments

This is pretty stupid. 3 seconds on google and here's the text of Article 1:

"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."

The filibuster is a procedural rule, controlling what happens before an actual vote on passage. The Senate has the explicitly delineated power to set its own procedural rules.

Posted by: mcc on January 11, 2010 at 4:12 PM | PERMALINK

Weren't the Republicans planning to have Cheney on hand and just declare the filibuster unconstitutional? Cheney would consult the parliamentarian and they would just kill it there and then? And that's why the "gang of whatever" came into play, to forestall that doomsday scenario.

Posted by: zmulls on January 11, 2010 at 4:12 PM | PERMALINK

"a majority of senators (and House members, for that matter) will constitute a quorum"

Okay, I'll buy that - but then, how did a few Republican House members and three (3) Senators manage to "pass" a bill that George Bush (the Lesser) flew into Washington in the dead of night to sign, in order to "save" Terri Schiavo from dying naturally?

I know, I know - rules, laws, the Constitution, treaties, etc. don't apply to Republicans. Sorry.

Posted by: Zandru on January 11, 2010 at 4:14 PM | PERMALINK

The filibuster is a procedural rule, controlling what happens before an actual vote on passage

That's the point, though: it's a de facto bar on passage of anything. Sure, the Court could hang it's hat on that, but it would be transparent that they are doing so to avoid hitting the issue squarely.

And each house may determine its own ruleswithin the Constitution. They can't change the quorum can they?

And saying it's non justiciable: well, it's not all that different than the line item veto, which the Court was willing to look behind and strike down, right?

Posted by: Jon on January 11, 2010 at 4:18 PM | PERMALINK

Why were Republicans so confident they could invoke the nuclear option on judicial nomination filibusters a few years ago? Assuming their argument was based on solid ground, why not resurrect their reasoning for a ruling on filibusters as a whole?

Posted by: bob h on January 11, 2010 at 4:25 PM | PERMALINK

Geoghegan leaves out everything that contradicts him, e.g. when he says: "...the bigger reason for the rule was to keep a minority from walking out and thereby blocking a majority vote..." he doesn't mention that the House fixed this in the 19th century.

As mcc notes, the Constitution is explicit -- both the House and Senate get to choose their rules. Neither the executive nor the judiciary get to change those rules, nor require them to be changed.

In the 1890s, when Thomas Reed became Speaker, it was common for the minority Democrats to hang around in the chamber but refuse to answer quorum calls, because it took fewer members to deny a quorum than it did to actually defeat legislation.

So Reed got pissed one day, and simply used his prerogative as Speaker to announce that various Representatives were present, ordering the Clerk to record them to make up a quorum. This was a blatant violation of the rules, but it led to a great moment when one of the Democrats denied the Speaker's right to count him toward a quorum.

Reed replied: "The Chair is making a statement of fact that the gentleman is present. Does the gentleman deny it?"

So, like the House, the Senate can change its rules -- if it feels like it. But neither the Supreme Court -- nor even the House itself -- can make 'em.

If you want to DO something about the filibuster, instead of kibitizing, there are 37 Senate seats up for grabs this year.

ASK THE CANDIDATES.

Posted by: theAmericanist on January 11, 2010 at 4:26 PM | PERMALINK

The filibuster saved us during the Bush years from some pretty ugly judicial picks. I see no reason for it to be overthrown just because we can't pass a lousy HCR bill that nobody seems to like anyway.

Posted by: squiggleslash on January 11, 2010 at 4:31 PM | PERMALINK

Why were Republicans so confident they could invoke the nuclear option on judicial nomination filibusters a few years ago? Assuming their argument was based on solid ground, why not resurrect their reasoning for a ruling on filibusters as a whole?

Posted by: bob h

In answer to your questions. 1. They knew they had a plan and the votes to win in their pocket. The argument isn't all that solid but it was solid enough. 2. Democrats won't revive the nuclear option because they don't want to end the filbuster. It gives some of them (blue dogs mostly) way too much power. On the other hand if they had 55 vote instead of 60 they might try it.

Posted by: Ron Byers on January 11, 2010 at 4:34 PM | PERMALINK

Leave it alone already. The fanatics, TeaBaggers, could essentially influence 51% in the Senate. I would rather have our legislation watered down, then theirs pass because republicans are too gutless to stand up to the extremists they are currently cultivating.

Posted by: ScottW on January 11, 2010 at 4:36 PM | PERMALINK

When will it ever stop? WHEN? Our country is being ruined by this one abused rule.

Hope this post goes viral and shouted from the rooftops. Like the proclamation of the ending of a war...that is how its abolition will be received.

And saying that "you'll change your mind when you become the minority" is absurd, being that when dems were in the minority, these repub obstructionists threatened the 'nuclear option' to get rid of the filibuster and would not hesitate to do so again...they would abuse this rule on both sides of the equation. Time to end it...NOW!

Posted by: bjobotts on January 11, 2010 at 4:40 PM | PERMALINK

If 51 senators agree to the rule then it is not unconstitutional. After all, 51 senators can change the rule anytime. Essentially the filibuster rule is an agreement by the majority to create a supermajority. The reason of course is aggrandizement of power. If they pass a filibuster rule to be the exact number of the majority party's delegation that would succeed in maximazing the leverage of each individual senator.

Posted by: Raoul on January 11, 2010 at 4:45 PM | PERMALINK

"As mcc notes, the Constitution is explicit -- both the House and Senate get to choose their rules."

However, as Jon then notes shortly afterward, they are not allowed to choose rules that violate the Constitution itself. They are certainly not allowed to co-opt the functions of other branches of government, and the argument that the Senate has co-opted the VP's role isn't one to be glossed over so blithely.

Further, your assertion that...

"Neither the executive nor the judiciary get to change those rules, nor require them to be changed."

...seems to contradict Article 3, Section 2, Clause 1, which gives the judiciary a very broad mandate to consider what is or isn't legal.

Posted by: Shade Tail on January 11, 2010 at 4:53 PM | PERMALINK

It's been a long time since I read "Reynolds v. Sims," the one man/one vote decision, but I've often wondered why it doesn't apply to super-majorities like that needed here to pass the state budget (our biggest road block, among many, on the way to a sensible budget).

Unfortunately, the concept that Chief Justice Warren outlined, that "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests." does not apply to the federal government which by constitution gives almost as much legislative power to the UN-democratic Senate as it does to the people's house.

As the Senate itself has no basis in democracy then I don't see how its internal rules need to be democratic.

Posted by: Cal Gal on January 11, 2010 at 4:59 PM | PERMALINK

I'm with the group that says this is a procedural rule that the Senate needs to resolve for itself. I would have no problem with a majority simply deciding it will no longer be a rule of the Senate.
I'm also not sure how Geoghegan comes to the conclusion that 41 Senators represent 10% of the Senate. I did a count of that one day and came to the conclusion that the 40 Republican's represented about 33% of the population.

Posted by: Camus on January 11, 2010 at 5:00 PM | PERMALINK

Note to Democratic Senators: Paraphrasing a line from the movie Jaws, "You're gonna need bigger balls. . .".

Posted by: DAY on January 11, 2010 at 5:01 PM | PERMALINK

As I pointed out in another thread, this is one of the most moments when using #s properly is helpful: Senators represent states, of course, not people. The true filibuster (which was set aside in 1975) requires the votes 2/3s of Senators "present and voting" to proceed; what we have now is 3/5s of Senators "duly sworn". So using the standard for the true filibuster, Senators representing as few as 16% of the population can prevent the Senate from acting (that is, 17 Senators can stop the minimum quorum of 50), but as soon as the majority gets it together, they roll over the minority.

Then again, Senators representing as much as 70% of the population can be stopped by a minority (34 Senators), in the true filibuster: even if all 100 Senators are there to vote.

But in fact, there never has been, and after 220 years it seems unlikely that there ever will be, such a sharp divide strictly between large states and small ones: this was not true before the Civil War (e.g., Virginia was a slave state), and it has never been true since.

I'm not going to double check, but IIRC: of the 40 Senators representing the 20 smallest states, I think 17 are Democrats; of the 40 Senators representing the 20 largest states, I think 11 are Republicans.

And it is certainly true that the 40 Senate Republicans currently represent states with a bit more than 40% of the US population. So the idea that the current use of the filibuster reflects a disproportionate ratio of Republican Senators to population is false.

No, if you want to make an argument AGAINST the filibuster, and FOR majority rule in the Senate, you have to make an argument that Senators representing states with just one-sixth of the US population should be sufficient to pass legislation opposed by Senators representing states with 83% of the people: cuz you can get to 51 Senators with just the smallest population states.

Posted by: theAmericanist on January 11, 2010 at 5:40 PM | PERMALINK

It is no secret that it requires only 50 votes in the Senate via the nuclear option to break the filibuster.

You think the Republicans would not have used the nuclear option in 2005 if what they wanted wasn't handed to them by a "Gang of 14?? [They wanted a set of right-wing judges approved for Federal bench positions -- and they got most of what they wanted by threatening the nuclear option.] You think they wouldn't use it again to pass whatever once they again become a majority? You think “Senate Tradition” is going to stop them -- like it now paralyzes Democratic Senators and many pundits from seriously advocating breaking the filibuster?? Get Real.

If there are not 50 votes to end a filibuster, then passing bills or amendments to really reform or improve health care, climate change, judicial nominations, whatever, are going to be dysfunctional exercises in "pass inadequate bills and pronounce those bills as ground-breaking". And hope the American voters don’t notice. Voters on average may be generally uninformed, but they are not THAT dumb.

In health care and other issues, Obama and Senate Democrats , most Pundits, and many Broderesque -bloggers constantly reinforce a meme that liberal or progressive Democrats are easily rolled by those making intransigent demands. This reinforces a long-standing meme that Progressives/Liberals are wimps, wusses, chumps-- pick your term. McCain, Coker, DeMint and most

Republicans may be batshit bonkers pushing insane ideologically-based solutions, but they appear very willing to take a lot of flack to push their agenda. Voters consistently reject candidates they view as weak wimps, no matter what their ideology or personal heroism (Google: Wilkie, Dewey, Stevenson, Stassen, McGovern, Rockefeller, Carter, Dukakis, Gore, Kerry, etc).

Posted by: gdb on January 11, 2010 at 5:42 PM | PERMALINK

representing just over 10% of the U.S. population

don't be looking to the constitution for the Senate to be representative of the people. The Constitution is clear as a bell that the Senate was designed specifically to NOT be representative of the people, but to protect the interests of the landed gentry against democratic rule.

Posted by: pluege on January 11, 2010 at 5:51 PM | PERMALINK

democrats could never muster the spine to do such a controversial thing as eliminate the filibuster. The filibuster will be eliminated when republicans get good and ready to eliminate it.

Posted by: gak on January 11, 2010 at 5:59 PM | PERMALINK

For standing: the obvious person to bring the suit would be the VP (president of the senate).

As to the "nuclear option": as proposed by the Republicans, that relies on browbeating (and, if necessary, firing and hiring) a senate rules arbitrator who is willing to say black is white. You could get away with it, but it is cheating.

There are two ways to do it which are not cheating. One is to overturn the "continuing body" fiction and actually revote the rules at the beginning of a session. You could do this at the start of the year with 51 votes. The other is to use a "nuclear option"-like procedure, but base it on this very unconstitutionality argument, and not the bullshit that the republicans had proposed.

Posted by: homunq on January 11, 2010 at 8:32 PM | PERMALINK

Folks REALLY need to beware of arguing for the "nuclear option", which basically means setting the precedent that the Senate rules are whatever 51 Senators want them to be at any given moment.

Posted by: theAmericanist on January 11, 2010 at 9:07 PM | PERMALINK

The nuclear option is not based on any "constitutional" argument. Furthermore, if the VP is present, he gets to make the parliamentary call. Its not rocket science.Bill Frist and Dick Cheney understood it and had the cajones to carry it out. It goes like this:
1. The Senate moves to vote on a controversial nominee.
2. At least 41 Senators call for filibuster.
3. The Senate Majority Leader raises a point of order, saying debate has gone on long enough and that a vote must be taken within a certain time frame. (Current Senate rules requires a cloture vote at this point.)
4. The Vice President -- acting as presiding officer -- sustains the point of order.
5. A Democratic Senator appeals the decision.
6. A Republican Senator moves to table the motion on the floor (the appeal).
7. This vote - to table the appeal - is procedural and cannot be subjected to a filibuster; it requires only a majority vote (in case of a tie, the Vice President casts the tie-breaking vote).
With debate ended, the Senate would vote on the issue at hand; this vote requires only a majority of those voting. The filibuster has effectively been closed with a majority vote instead of a three-fifths vote.

This can be done at any time. Senate "tradition" is the only barrier -- plus the lack of a pair of cajones among 50 senators plus the VP. Maybe Pelosi could spare a pair?

Posted by: gdb on January 11, 2010 at 9:41 PM | PERMALINK

GDB -- re-read what I said, before what you said: you're proposing that the presiding officer of the Senate should simply ignore the rules cuz he feels like it, and get 51 Senators to agree that the rules don't matter.

(You're also flat-out wrong on how this would happen -- it doesn't take 41 Senators "to call for a filibuster"; but the gist is simpler: does the Senate have rules, or not?)

Posted by: theAmericanist on January 11, 2010 at 10:11 PM | PERMALINK

The Senate has rules it can change-- at any time. You apparently are in favor of keeping harmful and abusive rules that, if in power, the Republicans would vote to overturn in a NY minute if Democrats abused the filibuster to anywhere near the extent the Republicans are. Actually, the VP would NOT be ignoring a Senate rule, but a Senate tradition. Furthermiore, MANY Senate rules are changed at times OTHER than the beginning of the session. You are simply generating straw arguments from ignorance.

Posted by: gdb on January 11, 2010 at 10:21 PM | PERMALINK

You're confusing two things that are marginally related, but distinct: rules and traditions.

The first is the Senate rule (not just a tradition) requiring unanimous consent. This is NOT like the House. Nor is it even remotely like the 'vanishing quorum' problem that Geoghegan misidentifies as a parallel.

For a piece of legislation to get on the floor in the House requires not just a quorum, but a Rule. There are Rules for every bill that the House debates (or it may come up as an amendment, rarely as a motion to recommit, always allowed under the general rules). This is the way the House majority controls the legislative agenda -- a bill has to get a Rule (from the Rules Committee) first. Typically, the Rules Committee, as a tool of the leadership, will decide the majority caucus wants to pass a bill, and will agree to a couple hours of debate equally divided between the majority and minority, with ONLY certain amendments to be offered, etc. That is, the power that in the Senate lies in individual Senators and the persuasive powers of the leadership, in the House belongs exclusively to the majority as a caucus.

The Senate has unanimous consent agreements that function as the traffic cops for floor action. That is, the Majority Leader asks for unanimous consent to proceed to whatever the majority wants to do.

So it isn't "41 Senators who decide they want a filibuster". There is ONE Senator (often many, but the point is that it only takes one) who objects when the majority wants to bring something up for debate and a vote.

When there is an objection, the majority gets to over-ride it: if they can. (This is why the Senate passed Rule XXII in the first place, to shut LaFollette up.)

Thus, the modern filibuster: it takes 3/5s of Senators "duly sworn" to close off debate, and even then, there is the post-cloture filibuster by amendment. (One reason you may be confused is the similarity between the modern filibuster, a rule which doesn't require those preventing a vote to be present at all times, and a hold, a tradition which doesn't require the guy to actually object, just to say he will.)

The Senate rules are not just traditions. They can't be altered in any given session of the Senate without breaking the nature of the Senate rules themselves, any more than a the umpire can wave a guy taking a lead off third in to score just cuz he looks fast.

What IS a tradition, which you've confused, is the practice of 'holds'. A hold is simply the intention of a Senator to object, if the Majority Leader asks for unanimous consent to consider something, often a nomination (which of course the House doesn't deal with), as well as legislation. Because a Senator has said he will deny the unanimous consent necessary to proceed, as a courtesy (as well as a basic how-to-run-the-railroad technique), the Majority Leader will generally not bring it up until the Senator has been satisfied.

As I understand it, refusing to honor a hold would not be a breach of the Senate rules, but of the courtesy the Majority Leader has always provided to his colleagues. All that would actually mean is that the Senator who wanted to object would actually have to show up and do it, when the majority tried to bring up whatever it was. A big change in the way the place works, but more as tactics than anything else.

So, no, the Senate doesn't change its rules during a session very often -- in fact, I can't recall a time when it DID.

Don't forget -- it used to be common for the presiding officer (f'r example, Humphrey) to overrule the Parliamentarian on procedural matters, so long as he had a majority to uphold the ruling of the chair against the advice of staff. Typically this would happen on germaneness issues (Rule XVI), which are often ignored anyway -- again, in the current Senate, by unanimous consent, which USED to be enforced by each caucus. That is, if a single Republican or Democrat wanted to be a pain in the ass, his colleagues would beat him up: "I want something in this bill...."

But ya gotta begin and end with the basic fact that Senators have individual powers that US Representatives don't have. Any attempt at "reform" which would erase those powers is doomed: Reid hasn't required various Senators who have holds to come to the floor and object, because he's trying to keep 99 cats moving in more or less the same direction.

Posted by: theAmericanist on January 12, 2010 at 9:10 AM | PERMALINK

SCOTUS John Roberts Rules of Disorder.

Posted by: johnnymags on January 12, 2010 at 9:34 AM | PERMALINK

Wow. A++++++++++. You sure can blow a lot of smoke, mostly to justify why the Senate acts like an American House of Lords, full of primadonnas (at least until that House was reformed several decades ago). A lot of tangential verbiage to show off peripheral knowledge that does not contradict my point. On any day they want, 50 Senators plus the VP can end the filibuster by using the nuclear option or one of several other parliamentary maneuvers to counter a parliamentary maneuver (the filibuster. You may be happy they don't have the cajones to do so. I-- and an increasing number of Americans--believe that the sooner the better that a dysfunctional Senate changes its rules and eliminates the filibuster.

Posted by: gdb on January 12, 2010 at 12:30 PM | PERMALINK

When the Republicans threatened their “Nuclear Option” to unblock Judicial nominees in 2005, they established that they would use the rule change to get their way again if cornered by a filibuster. The restoration of majority vote status for Senate rule changes would go to the Supreme Court.

The basis for this is described in Vikram David Amar’s “Can the Senate Bind Itself So that Only a Supermajority Can Change Its Rules?” http://www.yuricareport.com/Law%20&%20Legal/Senate%20Filibuster%20Part%20II.html

“…most constitutional analysts believe that each new Senate over time has a right, by majority vote, to make whatever procedural rules it wants.
The Supreme Court seems to think so, too. In a number of cases arising in a variety of different constitutional areas, the Court has expressed its belief in the principle of legislative equality - meaning one legislature has the same powers as another, and by implication, that none has the power to bind its successor. Thus, there are strong indications in Supreme Court caselaw that the Court would not approve of the 67-votes-to-amend rule-change rule, and would deem it unconstitutional.
That means that the old Senate can't bind the current Senate. It also means that Republicans could, indeed, revisit the rule change rule; amend it to require only a simple majority, not a supermajority; and then, by majority vote, change the filibuster rule - and put through any nominees they want. Game, set, match."

Like it or not, the cat is out of the bag. If the Democrats don't change the rule, the Republicans will next time around.

Posted by: Edna Gardener on January 12, 2010 at 12:57 PM | PERMALINK

Well, it's a minor point, but methinks you want to say "cojones". In Spanish, "cajones" are drawers, like you have in file cabinets or dressers.

But it's not true that 50 Senators plus the VP, or for that matter 51 Senators, can "end the filibuster".

What they CAN do, is destroy the Senate as a parliamentary body that obeys its own rules. Because the filibuster is one of those rules, this would achieve your purpose.

What I'm telling you is that it would not reach your goal. You'd exponentially increase the power of individual Senators to hold the nation hostage, because instead of fixing the rules, you'd abandon them altogether.

As I've pointed out every time this comes up, the Senate CAN change its rules -- in 2011, at the beginning of the next Congress. The best way to make that happen, is to go to the 74 candidates who are running for Senator this year (two of 'em on the ballot in Massachusetts next week) and get them to commit to the rules changes you want.

If you haven't done that, you're kibitizing -- and in a counterproductive way, at that.

Cuz what you're advocating is flat-out wrong: you want to empower any temporary majority of 51 Senators, who could represent states with as little as 17% of the population, to abandon Thomas Jefferson's rules for the Senate at any time they choose.

Look, this ain't complex: at the beginning of each two-year Congress, the Senate (like the House) adopts its rules. With some modifications (like Rule XXII, or for that matter Rule XVI) they are essentially the ones Jefferson wrote more than 200 years ago. They actually work quite well -- there ARE no other legislatures that have done as much good over as long a time, so a bit of humility re-writing Jefferson's rules seems a good idea.

You seem to object to two things that make the Senate what it is, both of which are rules, not traditions: the requirement for unanimous consent before proceeding, and the requirement that 3/5s of Senators present and voting are necessary to over-rule a minority that backs up an objection to unanimous consent.

Those are two different things. You also confuse a THIRD thing, which is the practice of holds -- not part of the Senate rules, just a courtesy.

I've always argued that it would be smarter not to abolish it, but to return to the "present and voting" standard for a filibuster. Use politics to make it work, cuz you're not going to take politics OUT of the Senate -- that's what democracy is for, after all.

Here's how it works -- it takes 50 Senators for a quorum, so in order to prevent the Senate from acting, staging a filibuster requires at least 17 Senators to be "present and voting" at all times. The majority does NOT have to keep 50 Senators around, nor even 34, at all times, but the minority does, because any time the majority gets 50 of its own to the floor to vote, UNLESS the filibustering coalition has at least 17, and on up to 34 there at the time the majority has 51 through 66 ready to go, the majority simply ends debate and proceeds to vote. (For simplicity, I'm leaving out the post-cloture filibuster by amendment tactic.) The best examples of this aren't the anti-civil rights filibusters, but the one against repealing Prohibition in the 1920s, or the original one against arming US vessels that helped get us into the Great War.

Now think about the practical politics of a true filibuster like that, applied to a present example: suppose Reid as Majority Leader told Kyl, look, I'm going to bring up that nomination you've put a hold on, and I'm going to make you object, if you want, and THEN I'm going to force votes that your allies are going to have to show up for, until we win.

How long do ya think Kay Bailey Hutchison, running for Texas governor, is going to want to indulge Kyl with her 24/7 presence within 15 minutes of the Senate floor cuz he wants tighter rules on Internet gambling so badly that he is willing to cripple a Cabinet agency to get it?

It seems a much smarter way to approach this than to set the precedent that ANY 51 Senators can disregard Jefferson's rules any time they choose.

Posted by: theAmericanist on January 12, 2010 at 1:06 PM | PERMALINK

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