Common Cause's Filibuster Challenge: Dead on Arrival
Earlier this week, Common Cause filed a lawsuit that seeks to declare unconstitutional Rule XXII of the Senate (the filibuster rule), which requires an affirmative vote by 60 members of the Senate to bring a close to debate. The Rule has this oddity: it takes more votes to close a debate than it does to pass the measure.
It is easy to think of a thousand reasons why that supermajority requirement is a good idea—or a bad one. At certain times we all think that some legislation should proceed more rapidly, while at other times we would all like to stop legislation in its tracks. It is not possible to mold the filibuster rule to the peculiarities of each individual case, so that all concerned are required to take the bitter with the sweet once the rule is in effect.
In principle, we should all be ambivalent about the rule. In my view, the ideal Senate rule would look like this: it would take a simple majority to close debate on a measure to repeal existing legislation, but a 60 percent (or more) rule to pass new legislation. But there is not a shred of evidence in support of this approach in either past practice or constitutional text.
Indeed, there are two simple features of the Constitution that in all likelihood doom this lawsuit to defeat, both of which are noted in the complaint. The first is that there are six specific provisions (dealing with impeachment, expulsion, veto overrides, treaties and amendments) that require some supermajority vote to carry the day. The second is that the Senate has -- under Article I, § 5, cl. 2, -- the power to “determine the rules of its proceedings.”
From the first, it seems clear that there is no indisputable constitutional preference for majority rule. From the second, it is clear that the Senate and not the courts should determine its internal operation.
Common Cause huffs and puffs to escape the obvious. But it seems likely that this case is doomed from the start.
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Comments:
Mar '11
Re: Common Cause's Filibuster Challenge: Dead on Arrival
Would it not be possible, using the so-called "nuclear option," for the filibuster to be rescinded through a simply majority of Senators?
If so, perhaps Common Cause should take up its case with the electorate directly, and end the filibuster the constitutional way.
Edited on May 16, 2012 at 7:46pmMar '11
Re: Common Cause's Filibuster Challenge: Dead on Arrival
Of course, in this scenario the Senate would simply invent a new vocabulary or set of procedures such that spending increases were suddenly redefined as "repeals" of something else.
Any rule which the legislature imposes to restrict itself will beggar the question whether Congress can create a rock so heavy it cannot lift it -- and the answer will always be a resounding no.
In the end, the filibuster rule is merely a tool which lets the Senate more easily respond to its externally-imposed incentives. Change those incentives, and the rules will change themselves - not the other way around.
Mar '11
Re: Common Cause's Filibuster Challenge: Dead on Arrival
If the Republican's win the majority in the Senate in November I fully expect common cause to continue with it's law suit and allow Republicans to govern without the 60 vote requirement.
Jul '11
Re: Common Cause's Filibuster Challenge: Dead on Arrival
I think Mendel has it right.
Nearly everything about professional politicians is a joke. A joke on us unfortunately.
Nov '11
Re: Common Cause's Filibuster Challenge: Dead on Arrival
DocJay: I think Mendel has it right.
Nearly everything about professional politicians is a joke. A joke on us unfortunately. · 14 minutes ago
I was going to hit the like button. I appreciate it, but I don't want to like the fact.
Re: Common Cause's Filibuster Challenge: Dead on Arrival
I've had minority members of legislatures wince when I suggest that there should be no such thing as filibuster and I understand full well the tool is how a minority protects itself.
I still don't like it. I find it contrary to the idea of a deliberative body. It looks like a child'd tactic on a playground - holding his hands to his ears and yelling "la la la la la" until the bell rings so he does not have to hear his adversary's side of the discussion.
Elections should mean something. The victors should be able to pass their agenda without procedural trips. If that means bad law is passed - so be it. Elections will then seem that much more important the next time.
Jun '10
Re: Common Cause's Filibuster Challenge: Dead on Arrival
What about a compromise, that allows a limited form--55 votes, rather than 60. Still some protection of minority rights, but it lowers the bar a bit.
Mar '11
Re: Common Cause's Filibuster Challenge: Dead on Arrival
True, but I think we often overlook a bigger point: the filibuster is a powerful tool for the majority party as well.
Think of the current political climate and the incentive structure it creates for senators:
The culture of victimhood is perhaps the most powerful force in electoral politics today: voters get most emotional when they feel their side is being suppressed. The filibuster creates the perverse scenario that the majority party can be stomped on and rendered powerless by the minority. The majority party can then claim victimhood and stir up its supporters- witness the resonance that the call "Republicans are the Party of No" has among the Democrat base.
(con't)
Edited on May 16, 2012 at 9:29pmMar '11
Re: Common Cause's Filibuster Challenge: Dead on Arrival
Another unspoken truth in today's political climate is that many voters want to see action in theory, but run away in disgust when they see how the sausage is made.
Witness healthcare reform in 2009 - before the election, a majority of the public actually supported government-sponsored healthcare reform. But once the reality of public options and individual mandates became clear, the Democrats paid a heavy price.
The filibuster allows the majority party to make a "good faith attempt" (which is doomed to fail) to appease its base, safe in the knowledge that rubber will never meet road. In that sense, the filibuster is the perfect foil for politicians to dupe their loyal supporters and still do nothing controversial.
DocJay has it right - the joke's on us.
Edited on May 16, 2012 at 9:30pmJun '10
Re: Common Cause's Filibuster Challenge: Dead on Arrival
Filibuster is in principle a fine thing. We should encourage debate, and any vote that cuts off debate needs to take into account the rights of the current-minority to have the opportunity to persuade members of the current-majority to switch votes through continuing debate. It can obvisouly be abused, but you have to live with that. Not sure how to craft a rule so that it is ot used for judicial nominees -- which I am sure common cause has no problem with using to block GOP nominees.
Jul '10
Re: Common Cause's Filibuster Challenge: Dead on Arrival
Been done. The number used to be 2/3 of votes.
Jul '11
Re: Common Cause's Filibuster Challenge: Dead on Arrival
I am for anything that makes it more difficult for Congress to pass laws. Our problem is not that there a no laws. Our problem is that there are too many laws. That were not well considered and discussed, that are hastily done. When 2000 page legislation can be introduced and voted on in the dead of night, by politicians that have not read it and do not completely understand it then it is too easy to pass law and not to hard.