John Krehbiel
Is the present filibuster rule constitutioinal?
by John Krehbiel on 6 February 2010
First, I am writing this off the top of my head. I may have the details wrong, but the substance is right. (IOW, I’m too lazy to look it up right now)
I saw David Brooks on the News Hour the other night talking about the filibuster. The Mark Shields was saying that in previous years it didn’t take 60 votes in the Senate to do anything at all, and the continuous threat of a filibuster was making the whole Senate an obstructionistic joke.
Brooks said that this is the way the founders wanted it.
Yeah, right, just like the way the Founding Fathers wrote the Pledge of Allegiance, right?
But here’s the thing. What the constitution does say is that each house can write its own rules. But my understanding is that the wording could be interpreted to mean that each congress decides its own rules, IOW, adopt rules for each 2 year term. That’s what the House does. But the Senate has kept the same rules since the number of votes needed for cloture was decreased from 66(?) to 60 in the 1920s(?)
So most of the current Senators never got a chance to vote on their rules, as the constitution could be interpreted to require.
Oh, and somebody questioned whether the Republicans were blocking Obama’s nominees, how about this?
2010-02-06 » John Krehbiel
6 February 2010 @ 11:45 am
OK, now I’m going to have to get a new Irony Meter:
6 February 2010 @ 12:49 pm
If there was any chance that it was unconstitutional I’m sure the Democrats would have been all over that.
The constitution definitely intended the Senate to be the break — to slow down the populist rantings of the House. But the 60 vote thing is just a Senate rule that could be changed.
I don’t want it to be. I wouldn’t mind if they upped it to 75. Anything that prevents those bozos (in either party) from passing laws is probably a good thing. If it’s really important, they’ll be able to get 75 votes.
6 February 2010 @ 1:11 pm
Perhaps a partial solution would be to exempt confirmation votes. It’s just too easy to keep the president from filling jobs. (any president, BTW)
But the thing is, each congress should get to approve its own rules. (and I seem to recall your objecting to my “if it was really unconstitutional they’d have changed it before” argument once before
6 February 2010 @ 1:42 pm
Maybe there should be a different standard for passing new laws and the old “advice and consent” required for confirmations.
And I may have objected to such a thing in the part, but it seems to me there’s a difference between “if it was really unconstitutional they’d have changed it” and “if it was really unconstitutional we’d have heard somebody complain before now.”
For example, the Department of Education is pretty clearly unconstitutional. They haven’t changed it, but there’s been plenty of talk about it.
6 February 2010 @ 3:30 pm
Unlike the House, the Senate has rotating members, so you could interpret their not bringing to a vote a change in rules assent to the present rules.
I don’t think cloture is a constitutional issue. They could keep it or drop it with no constitutional crisis.
6 February 2010 @ 3:38 pm
Cloture is definitely not a constitutional issue. But the problem is that most of the present members of the Senate have never had the opportunity to determine the Senate rules, as the constitution requires.
Most people would not consider that kind of tacit approval to be approval at all. It would be like telling the victim of a totalitarian regime that since they had not plotted to assassinate the Dear Leader, they must approve of their oppression.
As I understand it, the House votes to approve their rules at the beginning of each Congress. The Senate could do the same, but it would most likely take the whole 2 year term to get it to a vote. No doubt that would please Greg.
6 February 2010 @ 4:01 pm
In the House, each Congressman is beginning a new term every 2 years, In the Senate, only a third of them are new.
As I understand it, there is a procedure by which cloture could be eliminated that would avoid cloture itself. The so-called “nuclear option”, so it’s not as if the Senators are powerless to change it.
Apparently, both sides like the rule. Right now, with the Democrats looking at huge electoral losses in November, they are unlikely to vote away their veto rights.
6 February 2010 @ 5:18 pm
No doubt they enjoy taking turns at being unbelievably hypocritical.
Even though only a third of the Senators are newly elected, every two years is considered a “session” of congress for both houses.
6 February 2010 @ 6:04 pm
I agree that both sides are being unbelievably hypocritical and even irresponsible, but did it begin with the Republicans saying no to everything or did it start with the complete lack of bi-partisanship on the part of the Obama administration, where Obama failed to advocate for a bi-partisan and open debate on important issues.
From day one, the Republicans were locked out of all debate and their recommendations, like tort reform in Health Care, got no play in Congress.
Obama promised lots of openness and has failed to deliver. Remember Sunlight Before Signing? Remember Health Care debate on CSPAN?
Recall that one of the criticisms of HillaryCare was that it was being crafted in backrooms with powerful lobbies present. At least then, we knew who the players were. With ObamaCare, we don’t even know who was in the back rooms, except we know they didn’t include Republican Congressmen.
6 February 2010 @ 6:06 pm
I think what Senator Shelby is doing is pretty short-sighted and parochial, and it will probably come back to hurt him.
I’ve long suggested that the filibuster should be made into a true filibuster again. Debate should never be short-circuited, but now we have some stupid idea of a “gentlemen’s filibuster” where the mere threat to filibuster is good enough to obstruct a bill. If the minority wants to filibuster, fine, but they are truly going to have to tie up the floor with talk and babble. The minute they stop, the vote proceeds.
6 February 2010 @ 6:17 pm
Craig,
Agreed, it’s a pantomime if they don’t actually debate. Cloture was to allow debate to continue while there was still considerable opposition. If they don’t actually use it to debate, even if they read phone books or other nonsense, then it’s being abused and maybe the rule should be amended.
7 February 2010 @ 11:04 am
But don’t forget the Bush energy talks, where they wouldn’t even tell who was present.
All these counterproductive things have been gradually escalating, and it doesn’t seem very useful to worry now about who hit whom first.
And my original point is that current Senators should have the opportunity to debate and approve rules.
7 February 2010 @ 2:20 pm
I agree that each new Senate term should approve or reform their rules.
This actually goes against my own preference, as I favor limited government and gridlock. If cloture were removed, the floodgates to Change would be open.
At this point, I just want honest Government. People debating openly what they believe in.
The practice of opposing legislation just to be in the opposition goes way back. We would have had Government guaranteed health care, proposed by Nixon, similar to but more extensive than the current Democrat backed plan in Congress, in 1974 had Ted Kennedy not torpedoed it.