Senate Sued for Unconstitutional Filibustering

By Staff | May 22, 2012

Where to next? Filibustering more than just hot air (graph courtesy of progressivepolicy.org)

The notorious filibuster. Oh where to start? Originally intended to give a Congressional minority the right to extend a debate, the action has now become a synonym for obstruction.

Finally fed up with the destructive practice, four Democratic Congressmen have sued the Senate on account of what they claim is an unconstitutional filibuster rule.

When we go back to the beginning to see how the filibuster was originally intended, the answer is clear: the Senate never intended the filibuster to be put to such widespread use, and the framers were uniquely opposed both to supermajorities and tyrannous minorities.

Ezra Klein details this history in the Washington Post:

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.”

Now, the polarized state of American politics means that major bills need at least 60 votes to avoid an inevitable filibuster by the opposition. In some cases, the result is a hated supermajority and in other cases, legislation supported by a majority, dies at the hands of a vocal minority.

Since 2007, Democrats have been forced to try to break Republican filibusters 360 times — the highest rate in Congressional history. So bad is this status quo that Senate Majority leader, Harry Reid made the rueful admission that he should have reined in the filibuster rule last year, when he had a chance: In current practice, a single senator can simply declare a filibuster against a measure. This rule change could have been enacted on a simple majority vote on the first day of the session, But Mr. Reid and other Democrats didn’t want to lose the ability to obstruct the Republican agenda if they lost control of the chamber.

In response to the continued gridlock, four Democratic Senators have filed a suit suggesting that the current implementation of filibuster rule is unconstitutional, illegally nullifying their legislative votes. Their argument is that unlimited debate was never envisioned by the Constitution, and that supermajorities were required only in unusual cases, like overriding a veto or treaty ratification. So, their aim is to prevent the filibuster from being used abusively, without eliminating an important tool to give a minority party a voice.

The plan: Filibusters would require 10 senators to start, and members would have to speak continuously on the floor to keep it going (as was the case historically).

This suit, organized by Common Cause, does make strong historical points, but as a New York Times editorial points out:

Only recently have filibusters become a daily impediment to Senate operations, and they would not be that difficult to curb. We have supported eliminating the filibuster for judicial and executive nominees. Making other filibusters harder would be good for both parties.

If Mr. Reid remains majority leader in January, maybe he will make a fresh start in the new year and take the opportunity to lead the reform.