The Filibuster Is Constitutional and Essential for Freedom

Left wingers (including but not limited to the New York Times, Mother Jones, Think Progress, Washington Monthly and Ezra Klein) are trying to eliminate dissent in Congress by engaging in a coordinated attack on the idea of the Senate filibuster. Clearly, the left hates extended debate and they are advocating that Vice President Joe Biden eliminate the filibuster by decree as President of the United States Senate. They have no shame.

If you hate big government, you should love the Senate filibuster. The filibuster serves the good government purposes of slowing legislation. This allows citizens to understand and participate in the legislative process, provides scrutiny for complicated legislation and slows the process to confirm nominees. The left absolutely hates the filibuster, because the filibuster prevents liberal Democrats from steamrolling moderate Democrats and Republicans when trying to pass legislation or confirming extremist judges with minimal debate. A veteran Senate staffer tells Big Government that “the filibuster is a tool to slow down and make people really consider things. For those that believe in freedom and limited government the less the Congress does the better.” Of course the left’s goal is to exterminate the filibuster from the Senate rules by setting the table for Senate Majority Leader Harry Reid to argue that a filibuster is unconstitutional, then for Vice President Biden to order that the rule be ignored.

The filibuster should not be considered a bad word in the American lexicon. According to the U.S. Senate website “using the filibuster to delay or block legislative action has a long history. The term filibuster — from a Dutch word meaning ‘pirate’ — became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.” The traditional filibuster, as portrayed in the movie Mr. Smith Goes to Washington, was when one Senator would take to the Senate floor to talk until they could not talk anymore for the purposes of slowing or blocking a vote on legislation or a nominee. Prominent politicians who have participated in filibusters include liberals President Barack Obama, Secretary of State Hillary Clinton, Vice President Joe Biden and Senate Majority Leader Harry Reid. Allies of these elite politicians are working hard to demonize the filibuster in an effort to grease the skids for a far left wing big government agenda.

The Senate rules were changed over the years to modify the traditional filibuster from a 2/3rds requirement to a 3.5ths requirement to shut off debate. The current rule, as described by the Congressional Research Service (CRS), is as follows:

Senate Rule XXII, however, known as the “cloture rule,” enables Senators to end a filibuster on any debatable matter the Senate is considering. Sixteen Senators initiate this process by presenting a motion to end the debate. The Senate does not vote on this cloture motion until the second day after the motion is made. Then it usually requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture. Invoking cloture on a proposal to amend the Senate’s standing rules requires the support of two-thirds of the Senators present and voting.

Currently it takes 60 Senators to shut off debate. The Democrat Caucus, consisting of 58 registered Democrats, Independent Democrat Joe Liberman of Connecticut and Socialist Bernie Sanders of Vermont, currently has the votes to shut off debate whenever they can convince members of their own team to end debate. Evidently that power is not enough for the elites, they want to empower the Majority Leader to end debate and expedite legislation with minimal friction.

Charlotte Davis, a co-worker of mine at The Heritage Foundation, and a veteran Senate staffer has a great defense of the filibuster at The Foundry. Thomas Geoghehan of the New York Times argued that the filibuster is somehow unconstitutional. “But the Senate, as it now operates, really has become unconstitutional: as we saw during the recent health care debacle, a 60-vote majority is required to overcome a filibuster and pass any contested bill.” Davis responds “the most rudimentary reading of the Constitution suggests that the Founders wanted the passage of legislation to be exceedingly difficult in order to prevent a slim majority from ruling the country with impunity.” Davis is spot on and Geoghehan’s analysis crumbles under scrutiny.

Goeghehan correctly states that Article I, Section 5 of the Constitution states that “each house may determine the rule of its proceedings.” That is where the logic of Goeghehan ends.

Goeghehan incorrectly states that “but there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don’t even have to start; they just say they will, and that’s enough.” That is simply not true. A Senator has to show up or have another Senator object to any agreement to limit debate. If some Senator puts a “hold” on legislation, they must follow through with this threat to commence a filibuster or the leadership can move forward through unanimous consent agreement. Under the rules, a Senator has to show up to object to any agreement or the threat to filibuster is empty. Strike one New York Times.

Goeghehan continues that as a result of the prolific use of filibusters

the supermajority vote no longer deserves any protection under Article I, Section 5 — if it ever did at all. It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term. But this routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders’ intent.

So, because Republicans use the filibuster too much, the clear wording of the constitution should be tossed aside. The Founding Father’s intent is in the clear words of the Constitution that state “each house may determine the rules of its proceedings.” The Senate has passed Rule 22 that governs the ending of debate, therefore Goeghehan is engaging judicial activist thought if he wants Senators and the Vice President to toss aside the words of the Constitution and the Senate rules. Liberals have divined that our Founding Fathers would not like the current filibuster rule, yet that should not lead anybody to the conclusion that the filibuster is unconstitutional.

To support Goeghehan’s activist interpretation of the Constitution, he states, “first, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments.” Goeghehan must not know that there are numerous Senate rules that are not memorialized in the Constitution, yet they fall under the authority that “each house may determine the rules of its proceedings.” There are points of order in the Congressional budget process have been in law since at least 1985 that govern congressional consideration of budget and fiscal policy. According to the CRS

In the Senate, most points of order under the Budget Act may be waived by a vote of at least three-fifths of all Senators duly chosen and sworn (60 votes if there are no vacancies) (see Balanced Budget and Emergency Deficit Control Act of 1985. Beginning with the Balanced Budget Act of 1997, this super-majority threshold was applied to several additional points of order on a temporary basis. These points of order are identified in Section 904(c)(2), and the three-fifths requirement is currently scheduled to expire September 30, 2017.

Does Goeghehan find the many budget points of order a violation of the constitution? I think not.

Rule V of the Senate states that “no motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.” This rule means that if you don’t have 67 Senators to support your effort, you can’t suspend the rules and offer an out of order amendment to a bill. Is this supermajority unconstitutional? In the House, they have something called the “Suspension Calendar” where you need a 2/3rds vote to pass legislation. Is the existence of this procedure in the House unconstitutional? No. There are special rules in the House and Senate and they have been specifically authorized by the clear words in the Constitution.

Goeghehan’s second argument is that somehow requirements of supermajorities, including the “procedural filibuster effectively disenfranchises the vice president, eliminating as it does one of the office’s only two constitutional functions.” The Constitution in Article 1, Section 3 states that “the Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” The constitution states that the only time the VP is allowed to vote is in the case of tied votes. I guess one could argue that the Founding Fathers disenfranchised the VP when they specifically stated that the VP “shall have no vote.” This argument by Goeghehan is not worthy of further discussion. Strike two – looking.

The final argument is that “Article I pointedly mandates at least one rule of proceeding, namely, that a majority of senators (and House members, for that matter) will constitute a quorum. ” Now because Article I, discusses the requirement of a quorum in a manner “to keep a minority from walking out and thereby blocking a majority vote,” therefore “it would be illogical for the Constitution to preclude a supermajority rule with respect to a quorum while allowing it on an ad hoc and more convenient basis any time a minority wanted to block a vote. ” So, even though the Constitution states that “each house may determine the rules of its proceedings,” Senate Rule 22 violates the spirit of this provision because of the provision relating to quorums. This is an activist reading of the Constitution that should not pass the laugh test.

One fact that Goeghehan conveniently kicks to the curb is that filibusters can be overcome with a majority willing to be patient and force multiple cloture votes. According to the Senate web site, back when a 2/3rds vote was necessary to invoke cloture, “cloture was invoked after a fifty-seven day filibuster against the Civil Right Act of 1964.” The filibuster was broken by a patient majority willing to let the opposition debate until they ran out of steam. Strike 3 – you are out.

What is it that the left wants? Goeghehan has some suggestions.

1. If the House passed a resolution condemning the use of the procedural filibuster, it might begin to strip the supermajority of its spurious legitimacy. It’s the House that has been the great victim of the filibuster, and at least with such a resolution that chamber could express the grievance of the people as a whole against this usurpation by a minority in the Senate;
2. The president of the Senate, the vice president himself, could issue an opinion from the chair that the filibuster is unconstitutional; and,
3. And we needn’t rule out the possibility of a Supreme Court case. Surely, the court would not allow the Senate to ignore either the obvious intent of the Constitution.

Get ready America for a left that is willing to use all means necessary to crush dissent and stifle the rights of the minority. Some conservatives mistakenly embraced this argument during the Bush Administration for the purposes of eliminating the filibuster for judicial nominees. They were wrong then and the left wingers who want to seize power are wrong now. The left knows that they are living on borrowed time, so don’t put it past them to have Senate Majority Leader Harry Reid and Vice President Joe Biden pull the trigger to eliminate the filibuster in the Senate for the purposes of expediting the Obama agenda to grow government. Conservatives should embrace the filibuster as their friend in the fight against an ever growing federal government.