PDA

View Full Version : The Constitutional Status of the Filibuster



DenButsu
08-06-2009, 12:15 AM
I honestly don't know enough about constitutional law to be able to say if I think that filibusters are unconstitutional or not. But I think the basis for raising the question (being essentially that since supermajorities were explicitly called for in specific cases that in general the implication is that they should not be necessary) is a kind of interesting angle, and the aspect that even if it's unconstitutional the SC can't do anything about it is also interesting.


The Constitutional Status of the Filibuster

Kevin Drum says filibustering is unconstitutional (http://www.motherjones.com/kevin-drum/2009/08/bipartisanship-and-filibuster):


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.

I think the real point here is that it doesn’t matter what the Supreme Court thinks. The Supreme Court can’t rule on questions of Senate procedure. This is what the “political question (http://en.wikipedia.org/wiki/Political_question)” doctrine was built for. But the flipside of that is that, as I’ve said before, if Joe Biden, Harry Reid, and 49 other Senators want to change the filibuster rule or deem a health plan eligible for reconciliation or whatever else they like nobody can stop them. The Senate itself is the only adjudicator of its own procedures. The reason majorities hesitate to empower themselves this way is that even though the filibuster is against the transient interests of the current majority it serves the individual interests of each senator by increasing the worth of his vote.

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.

Indeed, the whole idea that the cloture rule constitutes a supermajority requirement is quite novel (http://voices.washingtonpost.com/ezra-klein/2009/07/misremembering_the_filibuster.html). Consider this account (http://books.google.com/books?id=KguJFHdmP6MC&pg=PA149&lpg=PA149&dq=and+sooner+than+expected,+since+votes+to+pass+i t+seem+apparent,+and+the+opposition+cannot+filibus ter+forever&source=bl&ots=-Va_FNYtDN&sig=UlVGUuy-eCBO6qQNY4UnqFoGzqQ&hl=en&ei=aMd5SuK4MZv8tgesndyWCQ&sa=X&oi=book_result&ct=result&resnum=3#v=onepage&q=&f=false) of the “court packing” fight in William Edward Leuchtenburg’s The Supreme Court Reborn:


“The best guessing here,” wrote Raymond Clapper in his column, “is that the new . . . court enlargement bill . . . will get thru,” while the Washington bureau of the Portland Press Herald in rock-ribbed Republican Maine reported: “General opinion is the substitute will pass, and sooner than expected, since votes enough to pass it seem apparent, and the opposition cannot filibuster forever.”

Privately, FDR’s foes conceded that these reckonings were correct. On July 7, the morose Republican Senator Hiram Johnson informed a friend: “They have the votes at present to put it over.” A confidential tally sheet set numbers on that conclusion. In an estimate prepared for the leading lobbyist against the Court plan, Frank Gannett, the Nebraska Senator Edward Burke revealed that if the roll were call right away, FDR would wind up the winner, 52-44.

Of course the court packing plan was ultimately defeated. But it was defeated because the tide turned and opponents had a majority on their side. The filibuster was seen as a potentially useful delaying tactic, but not a means by which the fight could be won. Yglesias (http://yglesias.thinkprogress.org/archives/2009/08/the-constitutional-status-of-the-filibuster.php) (original emphasis)

Hawkize31
08-06-2009, 02:29 AM
No, filibustering is not unconstitutional. Like the article says, its a procedural matter within the Senate, which sets its own rules following the structure the constitution provides. If its not specifically addressed (prohibited) in the constitution, it is fine.

DenButsu
08-06-2009, 05:59 AM
But a lot of things that are not expressly prohibited in the Constitution are eventually deemed to be unconstitutional based on interpretation of the Founding Fathers' original intent, what seems to logically follow as implications of what was written in the Constitution as it applies to other areas which it did not or could not have addressed, etc. And just because the Senate gets to establish their own rules that does not preclude the possibility that they might do so in violation of the letter or spirit of the Constitution.

I think that to conclude, based on the fact that they provided for the specific cases where a supermajority is required, that the rest of the time a supermajority is not required makes logical sense.

IndyFan
08-06-2009, 07:50 AM
fwiw, i think the filibuster is a good thing. it keeps the tyranny of the 51 at bay. like all good things, it can and has been abused. but for the most part has worked. mainly because it is a senate thing. if the house had a filibuster, they would never get anything done because the house members seem to be much more politically petty.

:)

ari1013
08-06-2009, 09:03 AM
fwiw, i think the filibuster is a good thing. it keeps the tyranny of the 51 at bay. like all good things, it can and has been abused. but for the most part has worked. mainly because it is a senate thing. if the house had a filibuster, they would never get anything done because the house members seem to be much more politically petty.

:)
It's not that -- the House is the way it is because its members are much more hardline thanks to their heavily gerrymandered constituency.

Senators have to think about their whole state so they represent a much more moderate viewpoint.

SmthBluCitrus
08-06-2009, 09:44 AM
I'm not a big fan of the filibuster -- I wasn't back when it was being debated when the GOP was in control and the whole "nuclear option" was being discussed in regard to the privatization of social security.

The elimination of the filibuster would cause the Senators to actually be accountable for their vote to their state. I really doubt things would be as party-line specific.