SEEKING CLOTURE

Is the Senate Filibuster Constitutional?

Presentation to the Georgia Lawyers Chapter and the Georgia State University College of Law Student Chapter of the American Constitution Society August 15, 2012

Emmet J. Bondurant Bondurant, Mixson & Elmore LLP

The Filibuster: 1919 - Present

to a flood.

From a trickle

The Filibuster: Past Three Decades

P R E S E N T

Rule XXII & Rule V

RULE XXII
Is it the sense of the Senate that the debate shall be brought to a close? And if that question shall be decided in the affirmative by three-fifths [60 votes] of the Senators duly chosen and sworn except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting [67 votes]

RULE V
The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

Rule XXII is Not a Rule of Debate

It does not ensure mature deliberation. It gives the minority total power to prevent the majority from debating the merits of bills and the qualifications of nominees.

The 60 vote requirement in Rule XXII:

Does not protect the right of the minority to debate it gives the minority the power to prevent the majority from debating Does not foster deliberation it allows the minority to prevent deliberation

The 60 vote requirement in Rule XXII:

Does not promote compromise it promotes gridlock by giving the minority an incentive not to compromise Does not promote accountability it prevents obstructionist Senators from being held accountable

The Filibuster Rule

It Does, however: Promote obstruction Promote hypocrisy Prevent the president from filling judicial and executive vacancies Allows the minority to nullify existing laws Encourage hostage taking

The Problem
Consideration of bills & nominations requires unanimous consent or a motion to proceed.

A motion to proceed is a debatable motion & subject to a 60-vote threshold.

The Problem the 60 vote requirement

Gives the minority the power to embarrass the administration [and] destroy the energy of government. The Federalist 22. Senate Minority Leader Mitch McConnell: The single most important thing we want to achieve is for President Obama to be a one-term President.

Judicial Nominations
The Federal Judiciary currently has 91 vacancies that remain unfilled 32 of which are judicial emergencies. Of the 18 district court nominees currently pending on the floor, 15 had nearly unanimous Republican support. Obama District Court nominees have had 7 times as many no votes as President George W. Bush had in 8 years.

Executive Branch Nominations

The current Republican minority has blocked votes & debate on hundreds of President Obamas nominees, including: Peter Diamond, Nobel Prize Winning Economist; Richard Cordray, who was finally recessappointed as head of the Consumer Financial Protection Bureau

The New Nullification

Nullification Lives: GOP Blocks Cordray

By Jonathan Cohn The senators upholding the filibuster havent suggested Cordray is unqualified for the job. Rather, they are holding up the nomination because they dont like the agency he would head or the law it is supposed to enforce the Dodd-Frank Act, which is designed to police the banking and credit card agencies. Theyve said, explicitly and repeatedly, they will allow a vote on Cordray only if and when the president agrees to changes in the law.

When a Nobel Prize Isnt Enough

By PETER A. DIAMOND Last October, I won the Nobel Prize in economics for my work on unemployment and the labor market. But I am unqualified to serve on the board of the Federal Reserve at least according to the Republican senators who have blocked my nomination. How can this be?

Republicans May Block Nominees After Obama Recess Appointments

By Laura Litvan Senate Republicans are weighing a plan to block most of President Barack Obamas federal appeals court nominations starting in June or earlier in response to the recess appointments he made this month.

Republicans Block Recess Appointments

By Manu Raju At the end of a rare Saturday session, the Senates last day of official business for the year, McConnell blocked an effort by Senate Majority Leader Harry Reid (D-Nev.) to confirm more than 50 executive and judicial branch nominations awaiting Senate action.

Headlines from
:
In Senate, Republicans Block Debate on Buffett Rule G.O.P. Blocks Debate on Financial Oversight Bill Republicans Block U.S. Health Aid for 9/11 Workers Senate Republicans Again Block Pay Equity Bill Republicans in Senate Block Bill on Student Loan Rates

Recent Bills Blocked by the Filibuster Include:

Paycheck Fairness Act (Vote: 52-47) Cybersecurity Act of 2012 (Vote: 52-46) DISCLOSE Act (Votes: 59-39, 57-41, 53-45) DREAM Act (Votes: 55-41) Public Safety Employer-Employee Cooperation Act (Vote: 55-43) Bring Jobs Home Act (Vote: 56-42) Buffett Rule (Vote: 51 45) Nomination of Goodwin Liu to 9th Circuit (Vote: 52-43) Nomination of Robert E. Bacharach to 10th Circuit (Vote: 56-34)

Hundreds of Bills that Pass House Never Even Debated in Senate

Frustrated House Still Waiting for Senate Action on 420 bills
By Russell Berman - 10/05/10 The House ran another legislative lap around the Senate in September, widening the gap in the number of bills the chambers have passed this Congress to more than 400. With only a lame-duck session remaining, the House since January 2009 has passed 420 bills that have sat on the Senate shelf, according to an updated list provided to The Hill.

The Problem
Changes to the Rule XXII are subject to filibusters. Rules continue from one Senate to the next, and can only be changed by a vote of 67 senators.

The Problem
The filibuster gives complete veto power to a minority of senators over every Senate action, including whether to even start a debate. The filibuster places the burden of ending debate on the majority, and allows the obstructionist senators to evade accountability.

Filibusters are a Historical Accident

There was no right of unlimited debate (i.e. filibuster) when the Constitution was adopted

Filibusters had not been allowed under the rules of the English Parliament since 1604
Filibusters were not allowed under the rules of the Second Continental Congress Filibusters were prohibited by the rules of the first Senate

The Democratic Principle of Majority Rule was the Bedrock of the Constitution
Articles of Confederation required a supermajority vote of 9 of 13 states. This rendered the government weak & ineffective, and was a major factor in assembling the Constitutional Convention.

The Democratic Principle of Majority Rule was the Bedrock of the Constitution
The Framers deliberately chose majority rule over supermajority requirements for: A Quorum Passage of Bills Confirmation of Judges and Appointments to Executive Branch

The Federalist Papers

James Madison and Alexander Hamilton explained why the Framers chose majority rule and rejected supermajority requirement for purposes of a quorum and for voting in three editions of The Federalist Nos. 22, 58 and 75.

The Federalist No. 22 (Hamilton)

To give the minority a negative on the majority . . . subject[s] the . . . greater number to . . . the lesser number . . . but in its real operation [its effect] is to embarrass the administration [and] to destroy the energy of the government . . . The majority . . . must conform to . . . the minority . . . the smaller number will overrule . . . the greater.

The Federalist No. 58 (Madison)

Madison conceded that some advantages might have resulted if the Framers had required more than a majority for a quorum and . . . for a decision. But Madison said, that these considerations are outweighed . . . [T]he fundamental principle of free government would be reversed . . . no longer [would] the majority . . . rule; the power would be transferred to the minority. . . [the] minority take advantage of [a supermajority vote requirement] to screen themselves from equitable sacrifices or extort unreasonable indulgences.

The Federalist No. 75 (Hamilton)

Hamilton described the negative consequences of a supermajority voting requirement in the Constitution: All provisions which require more than a majority . . . have a direct tendency to embarrass the operations of the government, and . . . to subject the sense of the majority to that of the minority.

The Federalist No. 75 (Hamilton)

Hamilton also warned that if two thirds [were] . . . required, it would amount in practice to a necessity of unanimity. And the history of every political establishment in which this principal has prevailed, is a history of impotence, perplexity and disorder.

In Context: Sen. Shelby Puts Hold On All Obama Nominees

By Jordan Fabian - 02/05/10 09:21 AM ET

Sen. Richard Shelby (R-Ala.) on Thursday placed a blanket hold on all of President Barack Obama's nominees before the Senate, according to the office of Majority Leader Harry Reid.

Shelby's holds mean that the Senate cannot vote on a nominee unless the hold is broken using a cloture vote that requires 60 senators or if the senator lifts the hold. Shelby applied the holds because of a dispute over a contract to build Air Force refueling tankers. The original deal was awarded to Northrop Grumman, which would have constructed the planes in Mobile, Ala.

An Accident of History
First Rules of the Senate, adopted immediately after the Constitutions ratification, provided senators no right to unlimited debate, or obstruction by filibuster. Instead, the First Senate adopted the previous question motion from English parliamentary practice, which ended debate on a majority vote.

An Accident of History
The Senate removed the previous question motion in 1806 after Vice President Aaron Burr suggested that the Senates rules were too complex and the previous question motion was unnecessary because it was very rarely used during his term.
The first filibuster did not occur however for another 35 years until 1841.

An Accident of History
Between 1806 1917, the Senate had no rule to limit debate; even so, filibusters were relatively rare. The Senate adopted Rule XXII to provide a method of ending debate where none had existed since 1806 not for the purpose of guaranteeing senators any right to filibuster.

An Accident of History
President Wilson condemned the Senate as: [T]he only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.

An Accident of History
For the first 30 years after adoption of the cloture rule, filibusters averaged less than 1 per year, and were primarily used to block anti-lynching legislation, fair employment, voting rights, and other civil rights bills. The current Senate minority uses the 60 vote requirement in Rule XXII to silently filibuster almost every piece of major legislation as well as judicial and executive branch nominations.

Constitutional Violations
Rule XXII Exceeds the Rulemaking Power of Article I, Section 5
Conflicts with fundamental principle of majority rule. Upsets carefully crafted checks and balances between the three branches. Allows minority to prevent majority from exercising Advice and Consent. In combination with Rule V, deprives majority of the Senate the power granted by Constitution to amend its rules. Gives minority a veto power over all Senate business. Gives minority power to nullify votes cast by members of the House.

Constitutional Violations 60-vote Requirement Conflicts With:

Quorum Clause Presentment Clause Power of Vice President to Vote in the Senate to Break a Tie

Exclusive List of Exceptions to the Advice and Consent Principle of Majority Clause Rule Equal Representation of States in the Senate

Six Exceptions to Principle of Majority Rule are Expressly Enumerated

Impeachments (Art I, 3, cl. 6) Expelling Members (Art I, 5, cl. 2) Overriding a Presidential Veto of an Order (Art I, 7, cl. 3) Ratification of Treaties by Senate (Art II, 2, cl. 2) Amendments to Constitution (Art. V)

Overriding a Presidential Veto of a Bill (Art. I, 7, cl. 2)

The Great Compromise

The 60 vote requirement upsets the finely wrought and exhaustively considered (INS v. Chadha) balance between majority of citizens residing in the populous states and those of minority living in less popular states. Under the Great Compromise, a majority of Senators representing a majority of states could pass bills and confirm nominees. The 60 vote requirement in the filibuster rule gives a minority of Senators (41) representing a minority of 21 of the 50 states with as little as 11% of the United States population the power to veto bills and nominees supported by 59 Senators representing 89% of the Country.

Constitutional Violation:
Deprives Senators of Right to Amend the Rules
Filibuster conflicts with Article I, Section 5, clause 2, which delegates to the Senate the power to adopt or amend its rules by a majority vote. Rule V, in combination with Rule XXII, violates fundamental constitutional principle that one Congress cannot bind its successors. The effect of the rules-in-combination: long-dead senators decisions are now binding on successive generations without their consent.

The Court has Overturned Laws Conflicting with the Structure of the Constitution
Clinton v. City of New York: The Line-Item Veto Delegation to the President of the power to veto line-items in appropriations bills (524 U.S. 417 (1998))

Bowsher v. Synar : Delegation of Executive Branch Powers to a Legislative Branch Official (478 U.S. 714 (1986))
INS v. Chadha: Authorization for a One-House Legislative Veto (462 U.S. 919 (1983))

Common Cause et al. v. Biden et al.

Plaintiffs
Common Cause: Organizational injury after devoting major time and resources supporting the DISCLOSE Act, which was filibustered twice in the last Congress despite receiving 59 votes out of 100. Four Members of the House: (Rep. John Lewis, Rep. Hank Johnson, Rep. Keith Ellison, Rep. Michael Michaud): Voted in favor of bills that passed the House that received more than a majority in Senate but still blocked by filibuster & voted for the DISCLOSE Act, which would have disclosed secret money spent in opposition to their campaigns. Three DREAM Act Beneficiaries: Three honors graduates of American universities, brought to the United States as minors, & now denied a path to citizenship because of the DREAM Act filibuster.