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On "Real Filibusters" - RePass Responds:

In response to my post below, David Repass comments:

Jonathan Adler asks me (rhetorically) "Where was Prof. RePass when 'phantom filibusters' were used against President Bush's judicial nominees?" My answer is: in the same place as I am now. It's just that I didn't try to get my view published in The New York Times back then, but I did teach it to students in my courses. My view then (as now) is that the majority leader should let filibusters -- real filibusters -- take place. If the minority is so intensely concerned about something that they are willing to mount a filibuster, then let them take the Senate floor and state their case. If Democrats were so concerned about certain Bush judicial appointments, then Bill Frist should have let them risk public opprobrium for holding up Senate business with a filibuster.

It is clearly unconstitutional for any majority leader to require 60 senators to support every controversial piece of legislation before it can even be debated. This fundamentally changes the Constitution and is not simply a procedural matter.

For more on filibusters, see these items by Sandy Levinson and Jean Edward Smith.

Related Posts (on one page):

  1. On "Real Filibusters" - RePass Responds:
  2. Bring Back the Filibuster, For Real:
ChrisIowa (mail):

My answer is: in the same place as I am now. It's just that I didn't try to get my view published in The New York Times back then, but I did teach it to students in my courses. My view then (as now) is that the majority leader should let filibusters -- real filibusters -- take place.

If Prof RePass did not try to get his prior view in the NY Times, it makes him still a hypocrite.
If he could (or by his judgment would not) succeed in getting his views published in a previous administration when conditions were not favorable to publication, it is no credit to him to have his opinions published when conditions are favorable.
3.2.2009 9:42pm
Gulf Coast Bandit (mail):
The professor continues to be wrong. A weak majority leader does not change the Constitution. The Senate made its rules (in accordance with the Constitution) and now they are abiding by those rules. To avoid conflict within the body, the Senate has decided not to do anything controversial. How is that unconstitutional? The Senate is acting within its rules.
I find it highly unlikely that the Founding Fathers would come down, take one look at the Senate, and have a conniption that they were behaving unconstitutionally. If anything, they might say it's behaving the way it's supposed to, as the saucer to cool the tea.
3.2.2009 9:43pm
cboldt (mail):
Until 1808 (IIRC), the Senate had a rule that permitted a majority of Senators to "move the vote." This worked against the notion of unlimited debate, and at the time, disposing of the rule didn't seem to create a situation of rule by minority obstruction.
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My view then (as now) is that the majority leader should let filibusters -- real filibusters -- take place.

The majority leader lacks the power to stop a Senator from taking and holding the floor. What keeps the minority from wasting their time by holding the floor is that such an action is generally pointless, and the same effect, delay of passage, can be obtained by merely raising an objection.
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Senator talking or senator not talking, if David Repass is agreeable with delay by a minority, then he is agreeable with delay by the minority. Frist did, in fact, delay other activity in an effort to get judicial nominees confirmed. And when he and McConnell were ready to raise a point of order to surmount obstruction of confirmation votes, the gang of 14 struck a deal that was designed to maintain (a minority of) the Senate's power over the executive. The Democratic party did succeeded in having some amount of public opprobrium attached to its obstruction efforts. The Democrats have earned every bit of unreasonable obstruction that comes their way.
3.2.2009 9:44pm
Gulf Coast Bandit (mail):
Further, the professor continues to conflate cloture (the 60-vote mechanism by which debate is cut off) and beginning debate, which can be done by a single senator calling up a bill.
3.2.2009 9:46pm
cboldt (mail):
-- It is clearly unconstitutional for any majority leader to require 60 senators to support every controversial piece of legislation before it can even be debated. --
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That's somewhat a red herring anyway. The Senate ALWAYS debate the stuff that they "aren't taking up for debate." Interesting situation back in the Clinton era, Democrats successfully withstood 6 attempts to take up legislation aimed at funding investigation of Whitewater. 6 cloture votes on a motion to proceed, 6 times cloture was rejected on exactly that measure. The 7th and 8th cloture motions were withdrawn.
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But the Congressional Record is LOADED with debate on the matter. Probably as much debate as would have taken place if the measure had been taken up and failed to obtain agreement to limit debate on final passage. The fact that it wasn't formally the business of the Senate did NOTHING to prevent debate on it. What was prevented was passage.
3.2.2009 9:50pm
cboldt (mail):
-- beginning debate, which can be done by a single senator calling up a bill. --
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Taking up a [new] bill is done by motion and unanimous consent. Conference reports represent old business and may be taken up at the volition of the majority leader. Matters on the executive calendar (nominations, treaties) can likewise be brought up at the volition of the majority leader.
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But if the issue is one of what topic may a Senator talk about, they can talk about anything they want to talk about, at any time. If talking on a subject is the measure of debate, then yes, a single Senator can initiate debate at any time, and need not even call up a bill or amendment in order to do so.
3.2.2009 9:53pm
A.S.:
It is clearly unconstitutional for...

Yep. More proof that whenever someone says "clearly", you can be assured that the assertion that follows is not clear at all.
3.2.2009 9:55pm
A.S.:
BTW, I noticed an error in Professor RePass's op-ed. There are currently 99 Senators, not 100 as Prof. RePass erroneously asserts. Minnesota only has one Senator at the moment.
3.2.2009 10:00pm
Gabriel McCall (mail):
What constitutional language, exactly, does the professor suggest is being violated? The text dealing with the legislative process reads:

"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it..."

The text doesn't say anything at all about what "passed" means. Unless there's clear historical data that "passed" meant "bare majority" to the founding fathers unless indicated otherwise, then it seems to me that the Senate gets to decide for itself what thresholds need to be met for them to pass a bill.
3.2.2009 10:36pm
tvk:
Kind of weak. Professors teach all sorts of things to their students. John Yoo apparently teaches a very fair view of executive power in his Con Law classes. Also not exactly a stand of moral courage if you secretly deplore it but silently stand by as the Nazis massacre the Jews. Of course the analogy deals with a situation of considerably more moral outrage, but the message still fits.
3.2.2009 11:17pm
NTB24601:
cboldt: The Democrats have earned every bit of unreasonable obstruction that comes their way.

Let me weigh in with the view from the other side. As a Democratic voter, I would have been outraged at the Democrats if they had not done everything in their power to obstruct President George W. Bush's judicial appointees. Anything less than absolute obstruction would have failed to balance the systematic abuse by Senator Hatch during the Clinton Administration.

Presidents Reagan and George H.W. Bush filled the federal courts with judicial appointees whose ideological bents reflected the litmus test in their party's political platform. At the time, that worried me, but I told myself, in essence: "You have to accept it. That's part of the fact that the Republicans control the White House. If you want to change it, then you need a Democrat to be elected President."

So when Clinton was elected, and then re-elected, I reasonably expected him to be able to appoint judges with ideological bents that would counter the Reagan and Bush I appointees. But what happened? Senator Orin Hatch shamelessly abused his position to block President Clinton's nominees. Hatch allowed only a limited number of nominees with "moderate" views to get up or down votes from the Senate.

The system has got to be balanced. If Democratic Presidents don't get to appoint judges, then the Democrats need to do everything in their power to prevent Republican Presidents from appointing judges as well. Otherwise, Democrats are ceding the courts to Republicans.

As I see it, the parties are now even on judicial appointments. Republicans blocked judicial appointees during the Clinton Administration, and Democrats blocked judicial appointees during the Bush administration. Now is the time for Republicans to break the cycle by not trying to block President Obama's nominees. Otherwise, I will be clamoring equally strongly for obstruction in the next Republican administration, and I doubt that I will be alone.
3.3.2009 12:05am
mls (www):
No matter how often the Professor claims that it is "clearly unconstitutional," the filibuster does not violate any constitutional provision. The fact that the Constitution does not require a supermajority for final passage of legislation says little, if anything, about whether the Senate may impose, pursuant to the Constitution's explicit rulemaking power, a supermajority requirement in order to consider legislation for final passage. As Judge Edwards noted in his dissent in Skaggs v. Carle, there is no textual conflict between the presentment clause and the filibuster.


Now if the Professor wants to argue that the filibuster is undemocratic or conflicts with the spirit of the Constitution or whatever, he can make that argument. But simply asserting that the filibuster is "clearly unconstitutional" is just annoying.
3.3.2009 12:20am
Soronel Haetir (mail):

As I see it, the parties are now even on judicial appointments. Republicans blocked judicial appointees during the Clinton Administration, and Democrats
blocked judicial appointees during the Bush administration. Now is the time for Republicans to break the cycle by not trying to block President Obama's
nominees. Otherwise, I will be clamoring equally strongly for obstruction in the next Republican administration, and I doubt that I will be alone.



Maybe we'll luck out and we'll reach a point where no CoA or SCOTUS appointments actually make it through the Senate. And then the effect will spill over to executive branch appointments. And a fun time will be had by all.
3.3.2009 1:22am
trad and anon (mail):
If it's so clearly unconstitutional, perhaps the good professor can tell us what provision it clearly violates. The Sixth Penumbra, perhaps?

I'm open to arguments that it's unconstitutional, but "clearly" is not doing it for me.
3.3.2009 1:57am
Tony Tutins (mail):

No matter how often the Professor claims that it is "clearly unconstitutional," the filibuster does not violate any constitutional provision. The fact that the Constitution does not require a supermajority for final passage of legislation says little, if anything, about whether the Senate may impose, pursuant to the Constitution's explicit rulemaking power, a supermajority requirement in order to consider legislation for final passage.

Wrong. Requiring any more than a bare majority for passage would render Article I, Section 3, Paragraph Four needless surplusage: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Constitutional requirement for a bill's passing the Senate is thus not 60, nor even 50+1: it is 50% + 1/2
3.3.2009 2:22am
Dave N (mail):
Hatch allowed only a limited number of nominees with "moderate" views to get up or down votes from the Senate.
The only time that Richard Paez, Sidney Thomas, and Marsha Berzon can be called moderate is when they are compared to Stephen Reinhardt, Harry Pregerson, and Betty Fletcher.

I would also note that President Clinton had 14 nominations confirmed to the Ninth Circuit, while President Bush had 7. There are currently two vacancies, including at least one that is over two years old.

For grins and giggles, I checked the other Circuits as well, since both Presidents served two full terms.

Here is the breakdown by Circuit:

D.C. Circuit—Clinton, 3 appointments; Bush, 3 appointments; 2 vacancies.

First Circuit—Clinton, 2 appointments; Bush, 1 appointment; 1 vacancy.

Second Circuit—Clinton, 8 appointments; Bush, 5 appointments; 1 vacancy.

Third Circuit—Clinton, 5 appointments; Bush, 6 appointments; 2 vacancies.

Fourth Circuit—Clinton, 5 appointments; Bush, 3 appointments; 4 vacancies (I counted Judge Roger Gregory as a Clinton appointee since he was originally given a recess appointment by President Clinton and subsequently re-nominated by President Bush).

Fifth Circut—Clinton, 3 appointments; Bush, 6 appointments; 0 vacancies.

Sixth Circuit—Clinton, 5 appointments; Bush, 8 appointments, 1 vacancy.

Seventh Circuit—Clinton, 3 appointments; Bush, 2 appointments; 1 vacancy.

Eighth Circuit—Clinton, 2 appointments; Bush, 7 appointments; 0 vacancies.

Tenth Circuit—Clinton, 3 appointments; Bush, 6 appointments; 0 vacancies.

Eleventh Circuit—Clinton, 4 appointments; Bush, 1 appointment; 1 vacancy.

Federal Circuit—Clinton, 4 appointments; Bush, 2 appointments; 0 vacancies.

If I do my arithmetic correctly, excluding the Federal Circuit, President Clinton appointed 57 federal appellate judges; President Bush appointed 55 federal appellate judges; there are 15 vacancies.

Of President Clinton's 57 nominees, 45 were confirmed by Republican Senates—which does seem a bit more than "a limited number."
3.3.2009 2:54am
Vermando (mail) (www):
I think the author is making an ethical argument - in the Bobbitt and Amar sense of the term - that the filibuster is not consistent with the ethos of the Constitution and not a textual one.

In any case, as has been pointed out, at least some valid constitutional arguments (such as, most obviously, text and various precedents) are opposed to the author's view. So, it is indeed an instance where someone says "clearly" to mean "confusingly, but it is clear to me and so I hope to make it clear to you."
3.3.2009 2:54am
Splunge:
I think cloture should be decided by a fistfight among interested Senators. No weapons allowed....well, maybe Senators over 80 years old should be issued a pair of nunchuks, but that's it.

Whoever first reaches the presiding officer's gavel and hits something solid with it wins. Simple and clearly constitutional. (I checked: the Constitution says zip about whether blood is allowed on the Senate floor.) Gives the galleries their money's worth. Just about as democratic, assuming neither party has an advantage in access to the Capitol gym for workouts. Plus, as a side benefit, it would encourage the election of younger and more quick-thinking Senators.
3.3.2009 4:00am
Ricardo (mail):
The filibuster rule is constitutional. I believe it's also the case (and this came up during the "nuclear option" debates a few years ago) that the President of the Senate can propose abolishing the rule and that rule change only requires a simple majority to be passed.

In an ideal world, the filibuster would only be used in special circumstances and would also be used to actually ensure debate on legislation rather than to delay a vote. In this ideal world, adults would police themselves on what constitutes reasonable versus unreasonable uses of the filibuster power. Perhaps we don't live in this ideal world, though, and maybe that requires considering doing away with the rule.

There is the argument that abuse of the filibuster runs counter to the intent of the Constitution but it's a problem with an apparently simple solution. Note that impeaching the President for wearing cheap suits or for stuttering too much during speeches may very well be Constitutional as well -- Congress may have the sole power to decide what does or does not constitute a high crime or misdemeanor. But we could also agree that such an abuse of the impeachment power would run contrary to the intent of the Constitution.
3.3.2009 4:51am
BGates:
I find it highly unlikely that the Founding Fathers would come down, take one look at the Senate, and have a conniption that they were behaving unconstitutionally

I'd expect they would take a look and launch on a 10-year long tirade about how grotesquely we'd deformed what they had bequeathed to us, but I doubt the term "filibuster" would enter in to it.
3.3.2009 5:13am
cboldt (mail):
-- Hatch allowed only a limited number of nominees with "moderate" views to get up or down votes from the Senate. --
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I don't have the time to fact check your point of view, but I will tell you that you do not have the benefit of the doubt with me. In fact, I think you are twisting facts as to Hatch's blockage in order to justify your point of view. I have fact checked Senator Leahy's characterization of Hatch's blockings, and concluded that Leahy was disingenuous in the extreme.
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As for blocking nominees, it's interesting that the same criticism you level at Hatch can be said of Frist and some GWB nominees. After the gang of 14, a couple of nominees, out of committee, were never brought up for a vote.
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Anyway, my point was directed to the question of whether/how much public opprobrium is present as a result of DEM obstructionism. IMO, it can't be enough. "Anything less than absolute obstruction would have failed to balance the systematic abuse by the Democratic Party during the Bush Administration."
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The Democrats have established "acceptable" means of blocking opposition, and now should be made to live under the same rules they defended as acceptable.
3.3.2009 6:19am
cboldt (mail):
The "filibuster" does not impose a supermajority threshold for passage. It imposes a supermajority threshold to stop debating.
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Occasionally, the Senate will roll the "let us stop debate and vote" vote with the "now we vote" vote, and set a 60 vote threshold for passage. While this looks like requiring 60 votes for final passage, it's merely a substitute for the 60 vote threshold that exists for ending debate.
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That the Senators withhold agreement to limit debate on grounds that they oppose the measure, rather than on the grounds that they aren't prepared to decide which way to vote, represents dysfunction -- an abuse of procedure to obtain an outcome.
3.3.2009 6:27am
mls (www):
Tony Tutins- the filibuster does not make the VP's tie-breaking vote "meaningless surplusage." Votes on final passage are by a simple majority. Some legislation is not subject to the filibuster and the filibuster is not used for all legislation to which it applies. The most obvious illustration of this point is the fact that VPs, including Cheney and Gore, have in fact cast tie breaking votes.

Even if the filibuster prevented all situtations where a VP might need to cast a tie breaking vote, that wouldn't make the constitutional authority "meaningless surplusage." It would just mean that the current rules of the Senate made it unnecessary for the authority to be exercised.

Of course, the fact that the filibuster does not explicitly conflict with any constitutional provision does not foreclose all arguments about its constitutionality. However, combined with its historic pedigree and the difficulty in identifying any coherent constitutional rule against its use (is the Senate required to bring a certain number of controversial bills up for vote?), it does (or should) foreclose the assertion that the filibuster is "clearly unconstitutional."
3.3.2009 7:12am
NTB24601:
Dave N:

If I do my arithmetic correctly, excluding the Federal Circuit, President Clinton appointed 57 federal appellate judges; President Bush appointed 55 federal appellate judges; there are 15 vacancies.

Of President Clinton's 57 nominees, 45 were confirmed by Republican Senates—which does seem a bit more than "a limited number."
Those are interesting numbers, but not a complete picture. Your count doesn't include federal trial courts. It also doesn't provide a measure of how many Clinton appointees were blocked. Jake Tapper (writing for Salon.com on May 10, 2001) put that number at 167. Charlie Cook (writing for the Cook Political Report on December 18, 2005) calculated that "the Republican-controlled Senate Judiciary Committee refused to even hold hearings on 62 of President Clinton's judicial nominees." Senators Lieberman and Hagel count the number of Clinton judicial appointees blocked at "more than 60." Senator Arlen Specter counted the number at 70.

For sake of discussion, though, let's put that aside and use your numbers. What we see is that Presidents Clinton and Bush managed to get roughly the same number of judges appointed to federal courts of appeal. Your numbers appear to support my view that Democratic obstruction of President Bush's nominees was a balanced response to Republican obstruction of President Clinton's nominees.

cboldt:
I don't have the time to fact check your point of view, but I will tell you that you do not have the benefit of the doubt with me. In fact, I think you are twisting facts as to Hatch's blockage in order to justify your point of view.
My viewpoint is based on my recollections from living through those times. Of course it has a partisan slant; that's characteristic of viewpoints (and of human recollection). Nonetheless, see the links above that I found this morning with a couple google searches.
3.3.2009 9:31am
MarkField (mail):

Now if the Professor wants to argue that the filibuster is undemocratic or conflicts with the spirit of the Constitution or whatever, he can make that argument. But simply asserting that the filibuster is "clearly unconstitutional" is just annoying.


I suspect that IS his argument. And, clearly, filibustering prevents the operation of majority rule, which is a fundamental component of republican government.


Even if the filibuster prevented all situtations where a VP might need to cast a tie breaking vote, that wouldn't make the constitutional authority "meaningless surplusage." It would just mean that the current rules of the Senate made it unnecessary for the authority to be exercised.


That's not very persuasive. The tie-breaker clause clearly assumes that all votes will be taken by majority rule.
3.3.2009 11:17am
A.S.:
And, clearly, filibustering prevents the operation of majority rule, which is a fundamental component of republican government.

Again, more proof that whenever someone says "clearly", you can be assured that the assertion that follows is not clear at all.
3.3.2009 12:09pm
A.S.:
The tie-breaker clause clearly assumes that all votes will be taken by majority rule.

This is not only not clear, but seems completely incorrect. The tie-breaker clause would seem to me to assume that *some* votes will be taken by majority rule - in particular, votes *for final passage* of *normal* bills. There are obviously other Senate acts that take more , expelling a member, and overrides of Presidential vetos must be approved by 2/3. So it certainly is the case that not *all* votes will be taken by majority rule. There seems to me to be no reason that the rule on ending debate, passed pursuant to the Constitutional text permitting the Senate to form its own rules, needs to be one of the items that is a majority vote rather than some other vote.
3.3.2009 12:18pm
Tony Tutins (mail):
There seems to me to be no reason that the rule on ending debate, passed pursuant to the Constitutional text permitting the Senate to form its own rules, needs to be one of the items that is a majority vote rather than some other vote.

Right, so long as it remains a rule on ending debate, and not a supermajority requirement.

This situation reminds me of Terry v. Adams, where black people were free to vote in the Democratic primary (the Dem nomination guaranteeing election in the general), but the only candidates who ran in the Democratic primary had been selected by vote of the Jaybird Democratic Club, which was all white. Thus, by a "parliamentary" maneuver, one faction controlled who the remainder could vote for.

The Supreme Court found this to be an abuse of the election process, whose object was to defeat the purposes of that part of the Constitution. And so they struck it down.
3.3.2009 12:59pm
MarkField (mail):

Again, more proof that whenever someone says "clearly", you can be assured that the assertion that follows is not clear at all.


What I said was that the filibuster prevents the operation of majority rule. Since that's its sole purpose, I think it's pretty strange that you don't find it "clear".


This is not only not clear, but seems completely incorrect. The tie-breaker clause would seem to me to assume that *some* votes will be taken by majority rule - in particular, votes *for final passage* of *normal* bills. There are obviously other Senate acts that take more , expelling a member, and overrides of Presidential vetos must be approved by 2/3. So it certainly is the case that not *all* votes will be taken by majority rule.


Taking your second point first, fine -- I'll amend my statement to say that the tie breaker clause assumes majority rule except in cases otherwise provided in the Constitution itself. As to your first point, you're simply inventing out of whole cloth possible exceptions. Unless you can offer some support in the debates or history of the tie breaker rule, you're just asserting your own position as "clear".
3.3.2009 1:43pm
mls (www):
Mark Field

"clearly, filibustering prevents the operation of majority rule, which is a fundamental component of republican government."

Ok, but there are lots of things in our government that prevent the operation of majority rule in some circumstances, including the presidential veto, judicial review, the electoral college, the Senate itself, and the type of filibuster that Professor Repass apparently accepts. So this is not much of an argument for the proposition that the filibuster is unconstitutional.

"The tie-breaker clause clearly assumes that all votes will be taken by majority rule."

As A.S. points out, this really doesn't follow logically. In addition, one cannot make this argument if one accepts, as Repass does, that some supermajority requirements are permissible.

P.S. Were you just trying to see how much you could annoy me by using the word "clearly"?
3.3.2009 1:45pm
Dave N (mail):
Tangential to the discussion, today Judge Reinhardt authored an interesting concurrence in Carver v. Lehman, where he notes how one judge does make a difference in a case. Judge Milan Smith, who wrote the majority opinion, responded.

In Carver, Senior Judge Warren Ferguson authored the original opinion, joined by Judge Reinhardt, with Judge Smith concurring in the result. After the decision was written, Judge Ferguson died. Because the mandate had not issued, Judge Richard Tallman was randomly assigned to replace Judge Ferguson on the panel.

Judge Tallman agreed with Judge Smith's analysis--and what had been Judge Smith's concurrence became the majority opinion--and Judge Reinhardt was none too happy with that turn of events.
3.3.2009 2:37pm
mls (www):
"Judge Reinhardt was none too happy with that turn of events."

I'm guessing Judge Ferguson wasn't thrilled either.
3.3.2009 2:43pm
MarkField (mail):

Ok, but there are lots of things in our government that prevent the operation of majority rule in some circumstances, including the presidential veto, judicial review, the electoral college, the Senate itself, and the type of filibuster that Professor Repass apparently accepts. So this is not much of an argument for the proposition that the filibuster is unconstitutional.


All of those items you mention are expressly provided for in the Constitution except judicial review, and that was expected by many as can be seen by Federalist 78. As I said to A.S., if there's an originalist or historical argument for the filibuster as an expected rule of the Senate, go ahead and make it. But the fundamental rule of legislation is majority rule, so the filibuster needs justification as an exception.


As A.S. points out, this really doesn't follow logically.


Except he (?) did no such thing. He offered a strained interpretation which ignores the natural reading of the clause. Let me give another example:

The suspension clause naturally reads as though Congress, in the absence of that clause, could suspend the writ in circumstances other than invasion or rebellion. That's the way everybody reads it because that's the natural implication. The tie breaker clause involves the same reasoning.

In fact, this sort of natural reasoning process was behind James Wilson's argument against a bill of rights. So if A.S. wants to use some other reasoning, he needs to explain why rather than just pull exceptions out of the air.


In addition, one cannot make this argument if one accepts, as Repass does, that some supermajority requirements are permissible.


Sure you can, as long as you assume an "except as otherwise provided for herein" clause. That's perfectly natural.


Were you just trying to see how much you could annoy me by using the word "clearly"?


Not you specifically, but my use of the term was intentional.
3.3.2009 3:44pm
Duffy Pratt (mail):
How about the ability of a single senator or congressman to hold up a nomination or piece of legislation by sitting on it in committee? There are plenty of internal rules that are undemocratic. That doesn't necessarily make them unconstitutional.

The funny thing for me in all this is the concern about whether "debate" can open or close. When was the last time there was a debate in the Senate??? Maybe I would buy this if I had some deep concern that the present filibuster rule was somehow impinging on when grandstanding could open. But the Senators have more than enough opportunity for grandstanding as it is.

The old filibuster rule allowed a single Senator, or a small group of Senators, with a conscience to hold up the entire Senate for the sake of a principle, at the risk of making fools of themselves. I guess they recognized that there are no Mr. Smiths, and that a Senator with a conscience was basically a logical impossibility, so they changed the rule to help party hacks engage in bloodless obstructionism.
3.3.2009 4:24pm
Soronel Haetir (mail):
The last full debate I recall getting any air time would have one of either the Terry Schaivo bill, or the 2004 election when Onhio's (?) electors were challenged.

Even then I'm not sure I'd call what the Senate does "debate" in that afaict few others are present and there is little attempt to persuade.
3.3.2009 5:54pm
A.S.:
What I said was that the filibuster prevents the operation of majority rule. Since that's its sole purpose, I think it's pretty strange that you don't find it "clear".


Actually, what you wrote was "filibustering prevents the operation of majority rule, which is a fundamental component of republican government".

I'll amend my statement to say that the tie breaker clause assumes majority rule except in cases otherwise provided in the Constitution itself.


But the filibuster is "otherwise provided [for] in the Constitution itself". It is a Senate Rule, which the Constitution explicitly provides for. I note that the Constitution does not say that the Senate may make its own rules provided that the Rules always use majority rule for every purpose no matter what. There is no reason to read such a proviso into the explicit Constitutional provision allowing the Senate to make its own Rules.

As to your first point, you're simply inventing out of whole cloth possible exceptions.


I haven't invented out of whole cloth Article I, Section 5.
3.3.2009 7:30pm
MarkField (mail):

Actually, what you wrote was "filibustering prevents the operation of majority rule, which is a fundamental component of republican government".


Yes, but the word "clearly" was part of the first clause, not the second. OTOH, majority rule IS a fundamental component of republican government. Are you denying that?


But the filibuster is "otherwise provided [for] in the Constitution itself".


Now you're being silly. The Constitution doesn't mention the word "filibuster". It does mention the vote necessary to override a veto. Clearly (used advisedly), the Founders expected the Senate's rules to account for the republican structure of the Constitution.


I haven't invented out of whole cloth Article I, Section 5.


It undercuts your argument. That Article sets forth the exceptions to the general rule. Unless you have some other basis for suggesting exceptions, you are simply making up those exceptions.
3.3.2009 11:06pm
MarkField (mail):
It seems to me that if someone wants to make an exception to such a fundamental principle as majority rule, that exception should be grounded in one of the following:

1. Theory. I no of no such justification for the filibuster.

2. The general practice of other legislatures. There are lots of legislatures in the world, but I'm not aware of any which allow filibusters. When legislatures in the states depart from majority rule (as, say, CA does with its budget) the results are disastrous.

3. Historical experience. The principle use of the filibuster in this country until the 1990s was to block civil rights legislation. That's not a promising justification.
3.3.2009 11:28pm
MarkField (mail):
Ack! I know of no such exception, of course.
3.3.2009 11:29pm
A.S.:
OTOH, majority rule IS a fundamental component of republican government. Are you denying that?


Of course. What's so special about a simple majority? And we've discussed, there are lots of various thresholds included in our federal Constitution and in our other laws. There's nothing any more fundamental about 50%+1 than there is about 2/3 or 60% for purposes of a threshold for legislative acts.


The Constitution doesn't mention the word "filibuster".


But it does mention that the Senate has the power to make its own rules.


Clearly (used advisedly), the Founders expected the Senate's rules to account for the republican structure of the Constitution.


That's ridiculous. Theren't nothing in the Constitution that says that the Senate's Rules must "account for the republican structure of the Constitution". That's completely made out of whole cloth. Or perhaps you can point me to the words in the Constitution that say that the Senate's Rules must "account for the republican structure of the Constitution".


It undercuts your argument. That Article sets forth the exceptions to the general rule.


Article I sets forth the exceptions to the general rule? Huh? Article I provides for the legislative branch of government. That doesn't seem to me to be an "exception". Section 5 likewise doesn't provide an "exception[s]", it provides the general power for the Senate to make its own rules, which is not an "exception" to anything.
3.4.2009 12:42am
cboldt (mail):
"Cloture" is simply an adaptation of one of Roberts Rules of Order, that being the 2/3rds majority device for "moving the question."
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Used properly, cloture is a means to insure that opposed members of the body have an opportunity to be heard before the vote is taken, and to insure that a sufficient number have concluded they are well-enough informed to have firmly decided how they will cast their vote. It functions to overcome situations where the vote is held up because a few dumb-asses can't make up their minds, or a few members are being obstinate jerks in refusing to move to the vote because they are firmly against the measure.
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Like any tool, cloture can be used improperly too. Clearly, the Senate uses cloture "improperly," as a means to empower an substantially-sized, obstinate, firmly-decided, cohesive minority. Contrary to the way cloture is supposed to work (failing to get cloture normally being an indicator that after more debate, the body will be ready to vote), failure to obtain cloture often results in the matter being killed as "not able to pass - can't get 60 in favor."
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Unconstitutional? Hell no. There is nothing in the constitution that requires either deliberative body of Congress to be a properly functioning deliberative body or to "not abuse its rules of order." Heck, there's nothing in the constitution to prevent those self-important elitist blowhards from passing unconstitutional legislation.
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The GOP would be crazy to move toward "don't abuse the rules." Politics has become like a boxing match that is evolving into a street fight. The first side that delivers a blow to the nuts, or pulls out a chain and strikes a blow to the head, is the side that will gain ground and advantage in the fight. The people are too numb and stupid to be effective referees. Sit back and enjoy the show.
3.4.2009 7:09am
MarkField (mail):
Minor points first:


Article I sets forth the exceptions to the general rule? Huh? Article I provides for the legislative branch of government. That doesn't seem to me to be an "exception". Section 5 likewise doesn't provide an "exception[s]", it provides the general power for the Senate to make its own rules, which is not an "exception" to anything.


I thought you were referring to the exceptions to majority rule. That was the context of our earlier dialogue. Referring to the Senate rules isn't relevant to the earlier discussion (you did bring it up later).

Be that as it may, the rules of the Senate are supposed to follow basic republican principles. If the Senate passed a rule forbidding Republicans to speak, that would be unconstitutional notwithstanding the general power to make its own rules.


Theren't nothing in the Constitution that says that the Senate's Rules must "account for the republican structure of the Constitution".


I agree that there's no such language. It was an assumption by the Founders, as I said before.

This brings us to my major point, namely the importance of majority rule to republican government. If you don't agree with this, I honestly don't see much chance of common ground. Here are some of the Founders on this:

George Washington, Message to the Third Congress, November 19, 1794 (discussing the Whiskey Rebellion): "to yield to the treasonable fury of so small a portion of the United States would be to violate the fundamental principle of our Constitution, which enjoins that the will of the majority shall prevail."

The House of Representatives, making formal response to President Washington on November 28, 1794, praising his handling of the Whiskey Rebellion: "It has demonstrated to the candid world, as well as to the American People themselves, that the great body of them, everywhere, are equally attached to the luminous and vital principle of our Constitution which enjoins that the will of the majority shall prevail...."

Thomas Jefferson, First Inaugural Address (March 4, 1801): "[I]t is proper you should understand what I deem the essential principles of our Government.... absolute acquiescence in the decisions of the majority, the vital principle of republics...."

In Federalist 58, James Madison responded to an anti-Federalist argument that the quorum in the House of Representatives ought to be more than a majority. In fact, this anti-Federalist argued, the Constitution should have required more than a majority for certain votes. Madison rejected these arguments as leading to minority rule, a rule inconsistent with fundamental republican principle:

"It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.

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."

Similarly, Alexander Hamilton criticized the Articles of Confederation precisely because they required more than a majority vote: "Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. … To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser. … The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater…."

I'll let Abraham Lincoln have the last word: "A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left."
3.4.2009 11:18am

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