Posted by AzBlueMeanie:
Last Thursday Senate Majority Leader Harry Reid took to the Senate floor to apologize to all the filibuster reformers he had stymied over the years.“The rest of us were wrong,” he said. “If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused and abused.”
Hindsight is always 20-20, Harry. You had the votes, and you not only failed to lead but obstructed on this issue. Despite his mea culpa, I have no reason to believe that Harry Reid would not do it again.
So this post by Ezra Kelin at his WonkBlog caught my attention. I had not previously heard about this lawsuit. Is the filibuster unconstitutional?:
According to Best Lawyers — “the oldest and most respected peer-review publication in the legal profession” — Emmet Bondurant “is the go-to lawyer when a business person just can’t afford to lose a lawsuit.” He was its 2010 Lawyer of the Year for Antitrust and Bet-the-Company Litigation. But now, he’s bitten off something even bigger: bet-the-country litigation.
Bondurant thinks the filibuster is unconstitutional. And, alongside Common Cause, where he serves on the board of directors, he’s suing to have the Supreme Court abolish it.
In a 2011 article in the Harvard Law School’s Journal on Legislation, Bondurant laid out his case for why the filibuster crosses constitutional red lines. But to understand the argument, you have to understand the history: The filibuster was a mistake.
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At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.
In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”
In Federal 58, James Madison wasn’t much kinder to the concept. “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.”
In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. And as Bondurant writes, “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
That majority vote played into another principle, as well: the “finely wrought” compromise over proper representation. At the time of the country’s founding, seven of the 13 states, representing 27 percent of the population, could command a majority in the Senate. Today, with the filibuster, 21 of the 50 states, representing 11 percent of the population, can muster the 41 votes to stop a majority in the Senate. “The supermajority vote requirement,” Bondurant argues, thus “upsets the Great Compromise’s carefully crafted balance between the large states and the small states.”
Establishing that the Founders intended Congress to operate by majority vote is different than saying that it’s unconstitutional for Congress to act in another way. After all, the Constitution also says that Congress has the power to “determine the Rules of its Proceedings.”
But as Bondurant notes, there’s precedent for the Supreme Court to review congressional rules: In 1892, in United States v. Ballin, the Court held that while “the Constitution empowers each house to determine its rules of proceedings,” it “may not by its rules ignore constitutional restraints or violate fundamental rights.” And while some may argue that the filibuster has, at this point, been around for well over a century, the Supreme Court has previously held that the fact that “an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date.”
Bondurant makes a strong case. Will the Supreme Court buy it? I have no idea...
There appears to be consensus building for reform of the senate filibuster rule in the Senate, rather than its abolishment. Senators do not give up their power to obstruct easily. if this lawsuit is a success it could restore functional government to Congress.
UPDATE: Politico has more on the lawsuit. Group sues Senate to scrap filibuster:
The nonpartisan nonprofit Common Cause sued the U.S. Senate on Monday, challenging the constitutionality of the filibuster rules that require routine 60-vote thresholds for bills and nominations that often have majority support. Several House Democrats and three undocumented students who would be aided by the so-called DREAM Act also joined the suit.
The lawsuit, filed in U.S. District Court for the District of Columbia, comes at a time of increased partisan gridlock in the Senate and amid complaints the filibuster is being abused by minority Republicans.