Please visit the new home of Majikthise at bigthink.com/blogs/focal-point.

« Wal-Mart in Vermont | Main | A newsman looks at the Newsweek debacle »

May 18, 2005

Filibuster finagling

Mark Kleiman makes a very good point about filibuster's intrinsic merits, or lack thereof:

I don't think there's much of a case for the filibuster. Super-majorities usually work against progressive causes. In an increasingly corrupt system, increasing the blocking power of minorities makes shakedowns more effective. The Constitutionally-mandated rotten-borough apportionment of the Senate makes giving the senators from the twenty-one smallest states power to block any piece of legislation that much less attractive.

Obviously, there are very good utilitarian reasons to hope that the filibuster is abolished later rather than sooner. Moreover, as Mark notes, the Republican's "nuclear option" is an ad hoc piece of procedural trickery:

But it seems to me that the "nuclear option" question isn't really about the filibuster, or about judicial filibusters, at all. It's about cheating. The Senate, acting under Constitutional authority, has created rules for itself. Those rules include a provision that changing the rules requires a two-thirds majority. (Requiring a super-majority for rules changes seems to me sound, since otherwise there would be in effect no rules at all that a temporary majority had to respect.)

It's also worth noting that the Republicans have already undermined most of the other channels by which the Senate minority could make its influence felt without filibustering.

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c61e653ef00d8344a16a653ef

Listed below are links to weblogs that reference Filibuster finagling :

Comments

For those who have been keeping score for the past five years, this is just another notch in the GOP's drive for the creation of a 1-party state.

These people are not conservatives. They are Stalinists without the gulags...yet.

mojo sends

I've written this before, but obviously progressive should want to get rid of the filibuster in general. Not illegally for one type of Senate action, though...

"I don't think there's much of a case for the filibuster. Super-majorities usually work against progressive causes."

Ahh.. So what??

Axiom: There is a case for that which works for progressive causes.

After years of not believing aliens live among us, I must admit they do, for so many around me apparently do not live on the planet I do nor share the history I am familiar with. Some worship and all knowing G-d called "progressive causes" least it be named and all hell break loose.

Progressives should NOT want to get rid of the filibuster...it's the constitution's only effective defense of the monority against the majority.

Progressives should NOT want to get rid of the filibuster...it's the constitution's only effective defense of the minority (sic) against the majority.

The filibuster works against progressives and for conservatives as long as the terms are actually descriptive in their traditional senses - that is to say, that progressives represent the direction policy is headed, and conservatives represent where policy has been. I'm not so sure that's the case or will be the case for a while. What the filibuster does favor is doing/changing nothing - which can be a very good tendency to build into some systems and a very bad tendency to build into others.

The point of the filibuster is to force compromise and protect the right to legitimate participation of the minority. That's also the main reason for the Senate. The House is intended to represent the majority, the Senate to act as a check to one group gaining too much power at the expense of the minority.

Anyway... it's nice to know that not everyone in the country is oblivious to the importance of what's going on. It's definitely cool to hear people weigh in.

Well said Shawn. The founding fathers knew that the general public could be inflamed with false information or partial information and the House was where that could be vented.

Thomas Jefferson called this " civium ardor prava jubentium" [passion of the citizen ordaining perverse things]. The Senate was meant to be the more deliberative body and the rules were to protect the Minority and act as a check and balance. In short to force compromise. That's also why California and Vermont get the same number of Senators. Ditto on the Electoral College.

The founders knew that "absolute power" corrupts and wanted to create rules that allowed the minority to hold the majority accountable.

Further the Judiciary was meant to be independent and check and balance the Executive and the Legistlative branches. Madison said:

"If they [the Bill of Rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

In order to do the Nuclear Option, the GOP will need to break the rules (#2, #5 and #22). In a nutshell the rules can only be changed by a 2/3 majority and only at the time of the first meeting of the new Senate.

The GOP claim that they aren't changing the rules... only setting precedent. The Senate non-partisan Parlimentarian (the Senate's referee) has already stated that such a move would be unconstitutional.

So that is as simple an explanation as I can manage.

Flint: Why exactly isn't the requirement of a 2/3 majority to change a rule unconstitutional entrenchment? I'm not criticizing, just wondering.

Flint: Why exactly isn't the requirement of a 2/3 majority to change a rule unconstitutional entrenchment? I'm not criticizing, just wondering.

The Senate can determine its own rules, and changing these rules must be done in accordance with the old rules. For example, if 55 Senators want to remove the filibuster completely, the remaining 45 Senators can filibuster them.

But those are not the extent of the rules.
There are other procedures that can be applied in the event of extreme and unprecedented manipulation by a block of Senators.
One such option allows for a ruling from the chair declaring a practice unconstitutional.
Since this practice IS arguably so....
then so be it.

(all B.S. aside- no one can be this blind...can not you see the simple reality that this turns the confirmation process on it head..
Do you really want ...from now on... a mere 40 senators to be able to have an effective veto power over judicial confirmations?
An effective 60 vote supermajority?
Why do you think filibustering for this length...this many appointments ...is unprecedented...
Should they have filibustered Thomas.?.
What about Learned Hand?, Thourogood Marshal?,
Oliver Wendell Homes?, Earl Warren?
This is an escalation - a receipt for luke warm Judges....

Alon, your statement is really confusing. "The Senate can determine its own rules, and changing these rules must be done in accordance with the old rules. For example, if 55 Senators want to remove the filibuster completely, the remaining 45 Senators can filibuster them." If the 2/3 rule is not unconstitutional entrenchment, why would 45 senators need to filibuster a rule change? They could defeat it.

I don't know...can someone explain this to me in terms of entrenchment doctrine itself?

The 2/3 bar for Senate rule changes was deliberately set high by the founding fathers for good reason... it was meant to avoid "The Tyranny of the Majority." They would have to get a certain number of the members of the opposition to agree with the changes... in short it is intended to force compromise.

They feared "absolute power" of any one party or branch of the governmenmt and set up the checks and balances to prevent the kinds of things that are going on right now.

"It was a sunny day in Philadelphia in 1787, and the Constitutional convention had just finished its work. A woman, watching the esteemed gentlemen congratulate themselves, approached one of the young nation's leading statesmen, Ben Franklin. "Mr. Franklin, what kind of government have you given us?" she asked. "A Republic, madam," Franklin quickly answered. "If you can keep it."

http://www.wealth4freedom.com/A_Republic.htm

As the Neocons assualt the Constitution openly in the Senate, They are also assaulting its companion document, The Bill of Rights, in secret meetings:

http://seattletimes.nwsource.com/html/nationworld/2002280351_patriot19.html?syndication=rss

I fear for my country as no other time in my life and the complacency is appalling. That it should take a British Memeber of Parliment to say the truth and ask those question of Congress that our own respresentatives should be asking is but one indication of how deeply in trouble we are.

All right, I found the stuff myself... This is sort of a cursory treatment, but it's on-point as to why the rule change would likely succeed:

http://www.yuricareport.com/Law%20&%20Legal/Senate%20Filibuster%20Part%20II.html

There seems to be considerable agreement that the 2/3 requirement is, in fact, unconstitutional entrenchment.

"There seems to be considerable agreement that the 2/3 requirement is, in fact, unconstitutional entrenchment."

Liar.

"Do you really want ...from now on... a mere 40 senators to be able to have an effective veto power over judicial confirmations?"

Stupid liar.

I am sick like unto death of you stupid Republican tools who follow people who call themselves conservative yet who violate any rule that gets in there way, including rules as old as the republic and lie about what they are doing and what they did every step of the way. You are filth and to stupid to know you are filthy.

Republican: someone smart enough to mouth a lame rationalization shoved in by its master, but to stupid to know its a lame rationalization, so, he can take the opposite side a week later and not know the difference.

I'll answer that rhetorical question, though, even though it arguably doesn't deserve an answer.

No, I don't particularly want a Senate where 40 votes can block a nomination. But then, that's the Senate we've had for years. Nominations have been blocked by 40 Senators before. Nominations have been blocked by a single Senator. Republicans blocked dozens of Clinton's judicial nominees, often for frivolous reasons. Asserting that nobody has every blocked nominees before, that preventing up-or-down votes is a recent innovation, displays either dishonesty or a stunning amount of historical ignorance.

And while, in an ideal world, I would design the Senate differently (or perhaps in my version of an ideal world there would be no Senate), we don't live in my ideal world and my preferences about what such a world would look like are uninteresting.

In the non-ideal world that we do live in, there's something I like even less than a Senate where a minority can block judicial nominees: a Senate where rules get changed in an extra-legal manner for no reason other than the whims and momentary political gains of the majority leadership. If Frist and his buddies want to change the Senate rules, let them propose a formal rule change, debate it, and get it passed with 67 votes. Anything less than that is frightening lawlessness.

I think that the metaphor of the "nuclear option" should be understood not just in terms of the abolition of the filibuster rule.

I understand it as more in the line of one party making a first nuclear strike after which the other side replies with ultimate force since they have nothing now to lose.

If the filibuster rule is abolished, then the minority will reply with the use of all the tactics of obstruction available to them, such as simply objecting to every parlimentary turn where "unanimous consent" is asked. Somebody objects and requires a vote. This takes a couple of hours, drawing out the the simplest activity for days and weeks.

The Senate is the ultimate "go along to get along" institution. If one side is willing to declare their intention to run over their opponents, there are many ways to fight back.

Be prepared to gaze upon the scene of "nuclear winter" in the legislative branch.

Matt, you took the cheese

"from now on" is the lie, by building in the lie that something changed, when, the truth is the fascists want to change a Republic old rule because it is in their way.

it is stupid for anyone to think they will always have the upper hand and therefore the rules should be arranged to give whoever has the upper hand power over all in their way.

Republicans are zombies (well, some like Chafee and Specter are scared pussies) and whoever reasons with them is playing themselves for a sucker.

That was a classy and thought-provoking response. I oppose the rule-amending rule change and any change to the filibuster myself, but I've heard from enough people who agree with that policy position that the legal argument about entrenchment is a pretty strong one. It's not unconstitutional to make or follow the rule, but it would be unconstitutional, the argument goes, not to allow future congresses to break it, b/c anti-entrenchment is a historically essential trait of the anglo-American legislature.

"There seems to be considerable agreement that the 2/3 requirement is, in fact, unconstitutional entrenchment."

I'm sorry to say that this is true... there are some legal scholars who agree with that and have some legal precedents. There are also some who disagree as well.

http://www.law.virginia.edu/home2002/html/news/2005_spr/filibuster.htm

If this were the only issue it would be a slam dunk for the Repubs, but it isn't they have to break quite a number of constituional rules to get to the 2/3 rule change. Here is a summary:

Here are some of the rules and precedents that the executive will have to ask its allies in the Senate to break or ignore, in order to turn the Senate into a rubber stamp for nominations:

* First, they will have to see that the Vice President himself is presiding over the Senate, so that no real Senator needs to endure the embarrassment of publicly violating the Senate's rules and precedents and overriding the Senate Parliamentarian, the way our presiding officer will have to do;
* Next, they will have to break Paragraph 1 of Rule V, which requires 1 day's specific written notice if a Senator intends to try to suspend or change any rule;
* Then they will have to break paragraph 2 of Rule V, which provides that the Senate Rules remain in force from Congress to Congress, unless they are changed in accordance with the existing rules;
* Then they will have to break paragraph 2 of Rule XXII, which requires a motion signed by 16 Senators, a two-day wait and a 3/5 vote to close debate on the nomination itself;
* They will also have to break Rule XXII's requirement of a petition, a wait, and a 2/3 vote to stop debate on a Rules change;
* Then, since they pretend to be proceeding on a constitutional basis, they will have to break the invariable rule of practice that constitutional issues must not be decided by the presiding officer but must be referred by the Presiding officer to the entire Senate for full debate and decision;
* Throughout the process they will have to ignore, or intentionally give incorrect answers to, proper parliamentary inquiries which, if answered in good faith and in accordance with the expert advice of the parliamentarian, would make clear that they are breaking the rules;
* Eventually, when their repeated rule-breaking is called into question, they will blatantly, and in dire violation of the norms and mutuality of the Senate, try to ignore the Minority Leader and other Senators who are seeking recognition to make lawful motions or pose legitimate inquiries or make proper objections.


So what they are going to do is unconstitutional in the manner in which they are going to go about it.

But as even the Repub lawyers note:

"Gerhardt said he cannot understand why Republicans would be so ready to sacrifice, likely forever, a tool they have employed often when in the minority. ”In the past that argument has been enough to keep things intact,” he said."

Which is what McCain, Spector and the other GOP senators who are opposed to the Nuclear option are basing their disent on.

Also it should be noted that this will have far reaching effects on the Senate which was designed to give the minority party influence to act as a check on the majority.

It will destroy the Independent Judiciary as a check and balance:

Thomas Jefferson wrote to James Madison in his letter of March 15, 1789:

"In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity. In fact what degree of confidence would be too much for a body composed on such men as Wythe , Blair, and Pendleton? On characters like these the " civium ardor prava jubentium" [passion of the citizen ordaining perverse things] would make no impression."

The important point in Jefferson's words are, "if rendered independent." If you stack the courts with extremist justices, you violate the very intent of the Constitution, the Bill of rights, and the founding fathers. This is why you must fight as an American, regardless of party affiliation, to keep the checks and balances in place especially when it comes to Justices.

In Madison's response to Jefferson on June 8, 1789 he wrote:

"If they [the Bill of Rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."


The Neocon Nazis can stack the court with their activist judges.

They can rubber stamp the new and expanded Patriot Act... shredding the Bill of Rights. This is opposed by many Republicans as well as Democrats.

http://www.checksbalances.org/

If they want to repeal Social Security, the 40 hour work week, over-time and the minimum wage, environmental laws, health and saftey standards in the work place, civil liberities, free press. all of which they have targeted... using this device they can. Senator Reid and others from both side of the aisle have made note of what is at stake.

We will be in danger of becoming a facist state. Many of their own supporters are going to find themselves wondering what happened when their full agenda comes out, just as many of the supporters of Stalin suddenly found themselves on trains to Siberia in utter disbelief.

Flint: I'm glad you linked to that Gerhardt stuff - Gerhardt is a phenomenal resource on this. I've never heard it argued necessarily that what the GOP wants to do is unconstitutional in an abstract sense - but the case seems strong that regardless, it's not enforceably unconstitutional, which is all they really need, especially since the public is unlikely to really take note of the finer legal points.

It seems like the idea that dems should get out there (after trying to clarify just how much the rules of the Senate would be changing) is that the reality is that all our lives are full of rules we don't have to follow. You don't have to keep promises to your significant other or your kids. An athlete doesn't have to give his best effort for the sake of his team. These are all rules that, though technically unenforceable in a direct sense, we rely on, and we expect people to follow them because it's the right thing to do. Technically-entrenching legislative rules, particularly old ones, would be like that.

Further... during the Terri Schiavo debacle the Neocons and their religious right maniacs like Dobson, Robertson and Falwell were howling about "liberals activist judges" only to have the nation find out that Judge Greer and Judge Birch of the 11th Appellate court wer both right wing republican conservatives in the ultra conservative "Justice Scalia and Thomas" camp. This made their claims hollow and transparent.

The five justices who are at the heart of the filibuster debate have all been sited for being "activist" and ignoring 50 years of legal precedent in their rulings. They place ideological activism above precedent and previous Supreme court rulings.

So what was the founding fathers intent for the Judiciary? Beyond the Jefferson and Madison exchange I just posted... here is an excerpt from Federalist paper #78:

The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.


So the optimum phrases here are:

"In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body."

They were intended to be independent of the Executive and Legistlative branches to protect our civil liberties. Tom Delay wants to cut their funding, Rep. Sennsenbrenner want to have a congressional "Inspector General" appointed for the Judiciary. all of which is an unconstituional assault on the Independence of the Judiciary and ultimatley your civil rights.

The Judiciary has "It may truly be said to have neither FORCE nor WILL, but merely judgment." They are the least likely for a despot to come from in short because they hve no real power to execute anything.

Should they fall... there goes Democracy.

Eli:

"we expect people to follow them because it's the right thing to do."

That is the pivotal point isn't it... getting people to just do the right thing. Senator Schummer said that he has been approached by 25 Republican Senators who have said outright that they don't want to do the Nuclear Option and Senator Spector appealed to them to break party ranks and vote their conscience.

They know that they have gone too far, but the administration has a cadre of lobbyist threatening no future funding and the military base closings as a club.

It will be a miracle if our republic survives this and any Senator who breaks ranks will be a true "Profile in Courage."

The alternative is as Jefferson said:

"God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such ,misconceptions,it is lethargy, the forerunner of death to the public liberty. ...

And what country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure."
- Thomas Jefferson

Jefferson would have agreed with "freedom isn't free" I just hope that it isn't one of those times.

Exactly flint - neither "force nor will"
Does that sound like the present supreme court?
Hardly..

The current Supreme Court are Republican appointees wingnut!

When you don't like their rulings you say their unfair and activists demons, when they gave Bush the Presidency without winning the Popular vote... they were saints.

The comments to this entry are closed.