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Bipartisanship and the Filibuster
| Wed Aug. 5, 2009 9:13 AM PDT
Ezra Klein argues today that since minority parties in the U.S. have universally concluded that the best strategy for regaining power is to prevent the majority from ever passing anything important, we should take another look at the filibuster:
There's a good argument [] that eliminating the filibuster would make the Senate a more, rather than less, bipartisan institution. For many legislative efforts, it would remove the "no bill" outcome from the list of possibilities. That would leave minority legislators with one of two options. Vote against a bill that will pass, or work to change and improve and add priorities to a bill that will pass. You might imagine that if "no bill" is the first-best outcome, then a "no vote" would be the second-best outcome. But that's not always true: Voters aren't very interested in ineffectual opposition. They're interested in what you've "done." That can mean killing a bad bill or improving a successful bill. Voting no, over and over again, isn't a very impressive record in any but the most partisan districts.
Actually, this is a testable theory because there's one bill (or, rather, a package of bills) that's passed every year on a straight majority vote: the annual budget. No filibusters are allowed on budget resolutions, so the question is whether constructing the budget tends to be a more bipartisan process than it is with other bills. I'm not quite sure what the right metric would be for measuring bipartisan participation in the legislative process, but surely there's some smart political scientist out there who can propose something. (Or already has.) Anyone?
In any case, I continue to think the filibuster is unconstitutional. The fact that certain types of legislation (treaties, constitutional amendments, veto overrides, etc.) specifically require supermajority votes is evidence that the framers assumed that ordinary legislation should be passed by majority vote. Assumed it so strongly, in fact, that they never seriously considered the possibility that they had to spell it out.
Until I get the Supreme Court to agree with me, of course, this doesn't matter. But I still think it's true.
UPDATE: Matt Yglesias points out that Senate rules are a political question and therefore the Supreme Court can't rule on them. I think that's probably true — but I'm not absolutely sure it's true. In any case, I wouldn't mind forcing them to consider the question just to be sure. Only a senator would have standing to bring a case, probably, but how hard is it to find one rogue senator willing to take a flyer? Especially in light of this:
I would say the key piece of evidence for Kevin’s interpretation of this is that the initial draft of the rules allowed for cloture on majority vote. Then during an 1806 revision of the rulebook, the cloture motion was scrapped on the grounds that it was never used and therefore unnecessary. Nobody was contemplating the creation of a supermajority requirement.
Like I say, unconstitutional. The framers quite clearly intended for congressional legislation to be passed by majority rule.
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Comments
I don't know if you would
Submitted by Napoleon (not verified) on Wed Aug. 5, 2009 10:08 AM PDT.
I don't know if you would consider this a stand in for bipartisanship but doesn't the minority get to participate significantly in earmarks.
If you want bipartisanship...
Submitted by Wagster on Wed Aug. 5, 2009 10:53 AM PDT.
The most important reform you could make is de-Gerrymander electoral districts. I don't know how it could happen, but it sure would make our politics more sane.
If you want bipartisanship...
Submitted by Wagster on Wed Aug. 5, 2009 10:53 AM PDT.
The most important reform you could make is de-Gerrymander electoral districts. I don't know how it could happen, but it sure would make our politics more sane.
Kevin, How can you believe
Submitted by Chicounsel (not verified) on Wed Aug. 5, 2009 11:21 AM PDT.
Kevin,
How can you believe the filibuster to be unconstitutional? What Amendment or provision does it violate? And what about the clear Constitutional authority that it's no business of the Supreme Court that such a rule exists in the Senate? Article I, Section 5 states that "[e]ach House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."
Since the filibuster is obviously a rule that the Senate has adopted for its proceedings, it cannot be "unconstitutional" because there would be no basis for the Supreme Court to declare it otherwise.
Unconstitutional?
Submitted by Glenn (not verified) on Wed Aug. 5, 2009 11:25 AM PDT.
You know, Kevin, the "filibuster" is really just a rule that allows for unlimited debate in the Senate, i.e., as long as any Senator wishes to speak on a matter, he may do so. The 60-vote threshold is the mechanism in place to cut off that debate and didn't even exist initially. And at least the Senators who were around at the beginning didn't seem to think there was a constitutional issue.
I think you'd be hard-pressed to make out an argument that allowing for unlimited debate is unconstitutional, much less that the constitution requires the Senate to have a mechanism for cutting off debate and further requires that mechanism to be activated by a simple majority. I mean, there's just nothing in the constitution that says anything like that, particularly in light of the express ability of each house to make its own rules.
To go to your point directly, even if you're correct under current rules the vote requires to pass legislation is, in fact, a simple majority so it doesn't violate the constitution even as you read it.
To be sure, I don't like the 60-vote cloture requirement and would rather see it be 51. But I don't see anything in the constitution remotely requiring that.
Unconstitutional?
Submitted by karog on Wed Aug. 5, 2009 11:52 AM PDT.
the "filibuster" is really just a rule that allows for unlimited debate in the Senate
That is OSTENSIBLY what it is about. What it REALLY is about is requiring 60 votes to pass a bill.
In hearings, both in the House and in the Senate, they routinely "cut off" a conresscritter by limiting statements to 10 minutes per or questions to 5 minutes per, etc.
To satisfy the purported goal of the fillibuster, they should provide ample but not unlimited time. Of course, this will never happen because their true objective is the second reason given above.
The question was, I believe,
Submitted by Glenn (not verified) on Wed Aug. 5, 2009 12:57 PM PDT.
The question was, I believe, about constitutionality, not the wisdom of the unlimited-debate rule or whether different rules could achieve the same objective. I don't know what hearings have to do with anything. But I do agree with you that the original purpose of the unlimited-debate rule -- to provide for a full airing of all issues -- could be achieved with sufficient time limits, given the fact that the rule has, as you say, become instead an unnecessary veto point. Again, though, the Senate's choice of another means can hardly be deemed unconstitutional.
Please, for the sake of all
Submitted by Cam Winston (not verified) on Wed Aug. 5, 2009 12:21 PM PDT.
Please, for the sake of all that is holy, will you PLEASE STOP with the daily "here's what Ezra Klein" or "Matt Yglesias says..." entries? We get it, you guys have a bit of man-love going on & think everyone should link back to each other's posts.
Enough.
Why the filibuster is unconstitutional
Submitted by Rich C on Wed Aug. 5, 2009 1:26 PM PDT.
Right now, the Senate rules allow unlimited debate, which can only be cut off if 60 Senators vote to do so. The Senate also has a rule which says that in order to change a Senate rule, a 2/3 vote of the Senate is required (67 votes). But the Constitution states that each House of Congress makes its own rules: this has repeatedly been interpreted, by both Vice Presidents (President of the Senate) and by the Senate itself to mean that a simple majority of any Senate may change the rules under which it operates (at least at the beginning of a Congress). Another way of putting this is that just because a Senate in the past adopted a rule saying that rules changes require 67 votes, does not mean that the current Senate cannot change its rules by a simple majority. If it did, that would mean the current Senate cannot make its own rules, that it is bound by rules made by a Senate long past. This analysis forms the basis for the "constitutional option" (scrapping the filibuster with 51 votes) that has been utilized (or credibly threatened) each time the Senate has formally adopted a mechanism to limit debate.
So, in so far as established Senate rules say that some standard other than a simple majority must be met in order to change the rules, those rules are inconsistent with the Constitutional principle that each House of Congress makes its own rules (implicitly: by a simple majority). Defenders of the filibuster have variously tried to argue that this majority rule standard isn't really implied in the Constitution's text, or that since 2/3 of the membership carries over from one Senate to the next that they're really all just one Senate and so rules made by one are binding on all subsequent Senate's, among other things.
But if a majority of the current Senate, tomorrow, endorsed a point of order claiming that demand for further debate of an issue was dilatory and unnecessary (by tabling an objection to the Chair's [Presiding Officer, ultimately the VP] upholding of that point of order), and thereby established a precedent according to which 51 votes can cut off debate (and this has happened several times, though each time the precedent was subsequently overturned by a new rule), and Mitch McConnell sought relief from the Supreme Court, he would almost certainly lose.
Kevin: I despise the
Submitted by Anonymous (not verified) on Wed Aug. 5, 2009 4:04 PM PDT.
Kevin: I despise the existence of the filibuster (heck, I loathe the very existence of the Senate itself, for that matter), so please know where I'm coming from, but the view that the filibuster is unconstitutional is a stretch. Why? Because passage of a bill in the senate does NOT require a supermajority vote as you contend. All you gotta do is get a majority of one. It's ending debate that requires a supermajority.
Plus, who would have standing to sue, and therefore test the constitutionality of the filibuster?
One question I've had was
Submitted by petty boozshwa (not verified) on Wed Aug. 5, 2009 5:42 PM PDT.
One question I've had was recently resuscitated by the Alaskan Constitutional Scholar Sarah Palin, if the Vice President is Constitutionally the President of the Senate, why doesn't he/she organize the body and issue the Robert's Rules of Order in the same manner as the Speaker in the other body? The sole purpose of the filibuster for 90% of it's existence was to keep the black man down extraconstitutionally. It's a pernicious barnacle and it ought to be eliminated.
Bring back the filibuster
Submitted by PaulG on Wed Aug. 5, 2009 6:12 PM PDT.
Personally, I’d like to see the rule on filibusters returned to its previous state. I can well remember growing up and watching Robert Byrd filibustering — with his dangle-bag and phone book. Even then I thought him a fool. Now, a senator says the magic words “I’m going to filibuster,” the bill is tabled and the Senate moves on. There’s no risk in the current system. Can anyone imagine what it would look like if John McCain, for example, were to be televised tying the Senate up in knots, keeping it from its most important business (the August recess), while reading the DC phone book hour after hour, all over the Cash for Clunkers program?
Constitutionality isn't the question
Submitted by Altoid (not verified) on Wed Aug. 5, 2009 8:36 PM PDT.
Chicounsel's right, imho, and Rich C is stretching above-- changing the unlimited-debate rule wasn't called the "nuclear option" for nothing. Actually doing it would have opened up the likelihood of every majority completely rewriting the institutional rules whenever it felt like it. If that happened, all the senate would ever do would be to re-write its own rules from the ground up. Even though filibusters have been used to protect the southern exception, there's a lot to be said for stability in procedures. We don't typically make it easy to change constitutions in any kind of organization, and the senate rules act like its constitution. They're rooted in the parliamentary principle, basic to the idea of any deliberative or representative body, that it has authority to make its own rules.
The supreme court most probably wouldn't touch a case on this because it involves a co-equal branch (with Roberts and Alito on the court I can't say "certainly" anymore even though the history all points this way-- those two are such slaves to executive power they might say presidents have the authority to define rules for Congress.)
The rule-making majority, as I understand it, has consistently held that basic procedural rules carry over from congress to congress. I think that's the first thing it does when it reorganizes in January after an election year. Then they wrangle like crazy over committee membership and how many seats each party has. The last thing they want to do is throw out their basic procedures. (BTW, in the house, I feel pretty safe in guessing that the speaker's authority over the rules comes from leading the majority that adopts them and winning the vote on adoption. No speaker is autocratic enough to just decree the rules. But I believe the house also has a separate rules committee that sets the "rules" for each bill, which can be different-- what kinds of amendments can be made, etc. Unlike in the senate, the speaker really does act as a presiding officer.)
The problem with the filibuster and the 60-vote rule is what Rich C says-- they don't actually filibuster. I'd really love to see the majority leadership force an actual possession of the floor at the right times-- like when something really important would be held up by it, with C-SPAN there so all the world can see it. Unfortunately the 60-vote rule works too well as a fund-raising and log-rolling opportunity as well as a wedge-issue- and bloviating-opportunity-creator. Those photo-ops and press-availabilities set up by manufactured tension are just too hard to resist.
Ooops . . .
Submitted by Altoid (not verified) on Wed Aug. 5, 2009 8:38 PM PDT.
I meant Paul G on the beauty of seeing stuffed-shirts reading from phone books--
The Constitution quite
Submitted by Anonymous (not verified) on Wed Aug. 5, 2009 9:09 PM PDT.
The Constitution quite clearly and explicitly gives each house of Congress the power to decide upon its own procedures.
I've got to agree with the
Submitted by Avatar (not verified) on Wed Aug. 5, 2009 10:51 PM PDT.
I've got to agree with the other commenters here. I'd even go further. It's a completely settled point of procedure, on a topic where the Senate is granted completely plenary power by explicit constitutional authorization without consultation with any other branch of government or even the other House of Congress. If you don't think that the Constitution permits this rule, you're just ignorant. The point that a fellow commentator would have to point out that the internal workings of the Senate constitute a "political question" not subject to Supreme Court review is, well... it kind of brings up the question, what business do you have making political commentary at all? It'd be like an engineer who was surprised that steel had a melting point.
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