Filibuster castrates majority rule, violates Constitution

“It’s not a rule of debate. It’s a rule of silence, a rule of censorship.”
– Emmet J. Bondurant, lead attorney in the lawsuit against the United States Senate, calling the filibuster rules unconstitutional

Sometimes it seems like the filibuster holds up every bill, motion and nomination that comes to the floor of the U.S. Senate. Last week, though, President Obama signed into law a bipartisan bill that bypasses the Senate for nearly 170 executive nominees and 3,000 Officer Corps positions. But that does little to raise the hope that Congress’ “legislative inertia,” which Justice Antonin Scalia joked about during oral arguments on the Affordable Care Act, is going to budge in any significant way.

The abuse of the filibuster, and its affect on the dysfunction of our legislative branch, is the number one reason that Congress is regarded with such low esteem by the American public.

Attorney Emmet J. Bondurant
Partner, Bondurant Mixson & Elmore, LLP

Atlanta attorney Emmet Bondurant made some news last spring, when he filed a lawsuit, in U.S. District Court in Washington, D.C., on behalf of Common Cause, members of Congress, and others, seeking to throw out the filibuster rule in the Senate on Constitutional grounds. Speaking to a group from the Georgia Lawyers chapter of the American Constitution Society, in his hometown, last Wednesday, Bondurant laid out his case for the better part of an hour, like an attorney making a presentation in a federal courtroom, except with PowerPoint slides, and without interruptions from the bench.

Bondurant acknowledged that the U.S. Constitution allows the Senate to set its own rules for debate, but, he insisted, the filibuster rule, as it has evolved, does not promote debate. “The filibuster promotes obstruction,” he said. “It promotes hypocrisy.”

The reason the suit cites for its assertion that the Senate’s filibuster rules are unconstitutional, is simple: “because they are inconsistent with the principle of majority rule,” either when used in order to quash debate on legislation, or to keep the rules themselves from being changed.

A brief history of the filibuster…

Bondurant asserts the existence of the rule is, itself, “an accident of history.”

“[The] first rules of the Senate, adopted immediately after the Constitution’s ratification, provided senators no right to unlimited debate, or obstruction by filibuster,” Bondurant laid out in his presentation. The framers, he explained, purposely did not ask for a super majority for anything, except for the extraordinary actions of amending the Constitution, overriding a presidential veto, impeachment, expulsion of a member, or ratifying treaties.

In the Federalist Papers, Alexander Hamilton railed against requiring what we now call super majorities, calling that corruption of majority rule “a poison.”

Giving the minority a way to negate the vote of the majority, Hamilton wrote, in No. 22:

“…is, in its tendency, to subject the sense of the greater number to that of the lesser number…The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon the supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto to the regular deliberations and decisions of a respectable majority.”

James Madison, in the Federalist Papers, No. 58, adds:

“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…[In] particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general [welfare], or, in particular emergencies, to extort unreasonable indulgences.”

Until 1806, the twenty-six men in the Senate would end debate with a simple majority, by someone calling the “previous question” to a vote. But since the gentlemen in the chamber always voted to end debate, Vice President Aaron Burr, as outgoing President of the Senate, declared it a complicated and unnecessary rule that they could do without.

Even so, the first filibuster in the U.S. Senate did not happen until 1841, and without the “previous question” rule, there was no way to end a filibuster, unless or until the senator grew weary or was lobbied to cease. It was always considered an extraordinary maneuver. People used it rarely.

The frequency of the filibuster, since just after the implementation of cloture.
From Emmet J. Bondurant and Common Cause

In 1917, with the country on the brink of a war declaration after the sinking of the Lusitania, it was President Woodrow Wilson who called for a way to end debate, presumably so he could get the necessary legislation through Congress quickly in a time of war. It was a new rule, Rule XXII, that provided the first way to do that since the Senate abandoned the “previous question” rule, over 110 years before. Cloture, as the new measure was called, required a two-thirds majority, present and voting, to end debate, “which [given the size of the country] at the time,” Bondurant wrote in the Harvard Journal on Legislation (Vol. 48), last year, “could have been as few as thirty-three senators.”

Even though it was still used rarely, less than once a year over the next ten years, the filibuster rule remained in place, because the Senate still found it somehow indispensable. “[I]t has been amended only when its continued existence was threatened,” Bondurant noted in the article. “After [President Truman’s] civil rights bill failed [in 1949], Senator Richard Russell (D-GA) pushed through an amendment that expanded cloture to include motions and other [Senate] matters,” he said. The new version of Rule XXII still required a two-thirds majority for cloture, but it also said that the super majority had to include the entire Senate, not just those “present and voting.”

The rule was essentially cemented into place in 1959. Up until that time, it was believed that a simple majority could rewrite the rules of the Senate at the beginning of each new Congress. (It is still done that way in the House.) To appease those who wanted to compel the Senate of the 86th Congress to achieve cloture by a simple majority, Sen. Lyndon B. Johnson (D-TX), then the majority leader of the body, pushed through an amendment to the rule, that returned the two-thirds cloture vote relative to the size of a Senate quorum, in exchange for making all Senate rules continuing from Congress to Congress.

What LBJ succeeded in doing was to turn Rule XXII into a Catch-22. Rule XXII says that you need a super majority for cloture on a bill or a motion, but the new rule, Rule V, said that cloture applies to Senate rules, also. You cannot change a Senate rule outside of the process of the rule itself, so neither cloture, nor any Senate rule, can be changed without a two-thirds majority of a quorum.

Requiring sixty votes, a three-fifths majority of our entire Senate, for cloture on debating a bill or motion, was adopted in 1975, once again in a response to senators pushing for a simple majority to amend the rules. But the two-thirds majority remains when it comes to changing the rules themselves.

What the filibuster means today…

“The single most important thing we want to achieve is for President Obama to be a one-term president.”

– Senate minority leader Mitch McConnell (R-KY), in an interview with the National Journal, October 23, 2010
Here is just a partial list of bills that would have passed the Senate (with vote totals), which clearly include many of President Obama’s agenda items, had the filibuster rule requiring sixty votes for ending debate – cloture – not blocked them*:

•Paycheck Fairness Act (Vote: 52-47)
•Cybersecurity Act of 2012 (Vote: 52-46)
•DISCLOSE Act (Voted on 3 times: 59-39, 57-41, 53-45)
•DREAM Act (Votes: 55-41)
•Public Safety Employer-Employee Cooperation Act (Vote: 55-43)
•Bring Jobs Home Act (Vote: 56-42)
•“Buffett Rule” (Vote: 51 – 45)
•Nomination of Goodwin Liu to 9th Circuit (Vote: 52-43)
•Nomination of Robert E. Bacharach to 10th Circuit (Vote: 56-34)
* From Common Cause, via Emmet Bondurant

That even just starting debate on a bill now takes sixty votes hamstrings even the most basic functions of the Upper Chamber. It gives power to the minority party to subvert the Constitutionally mandated responsibilities of the Senate, by not being able to exercise its advice and consent role in approving the president’s judicial appointments, as well as nullifying existing laws which call for congressional action. Besides the votes listed in the table on the right, there were other significant consequences of cloture, like not approving Richard Cordray for the Consumer Financial Protection Bureau, part of a duly passed and signed Dodd-Frank Act, which reformed the way Wall Street is supposed to conduct its business.

Even the “unreasonable indulgences” that Madison warned of have come into play, most notably, recently, in the Nebraska exemption during the Affordable Care Act debate, which gave Sen. Ben Nelson’s (D-NE) state a higher disbursement, in exchange for him dropping a filibuster threat and voting with the majority.

Right now, Common Cause’s lawsuit against the Senate is going through the motions. In early June, the Senate resolved to select a counsel to represent the chamber’s officers who were named in the suit, including Vice President Biden, in his capacity as President of the Senate. It was adopted by unanimous consent. Who says they can’t agree on anything?


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