Four Members of Congress Sue To Declare Filibuster Unconstitutional

[Whack-a-Mole]

For debate: Do they have a case or is this grandstanding?

Further debate: Is it a good or bad thing to get rid of the filibuster (if they succeed)?

Four Members of Congress, Reps. John Lewis, (D-GA), Michael Michaud, (D-ME), Hank Johnson, (D-GA), and Keith Ellison, (D-MN) filed a lawsuit yesterday claiming that the filibuster is unconstitutional and must be blocked by federal courts. According to their complaint, the Constitution specifically lists only a handful of instances where a supermajority is required for Congress to act, and this list precludes such a requirement from being applied in other cases:

SOURCE: http://thinkprogress.org/justice/2012/05/15/484311/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/?mobile=nc

[John_Mace]

The SCOTUS is not going to tell Congress how it must conduct its business. Did these 4 guys miss the part of the Constitution that says each House has the power to make its own rules?

@US Constitution

Each House may determine the Rules of its Proceeding…

It would be a bad thing for the courts to get rid of the filibuster. That smells like a constitutional crisis to me.

[BigT]

But those rules can’t violate the constitution.

[aruvqan]

@John_Mace

The SCOTUS is not going to tell Congress how it must conduct its business. Did these 4 guys miss the part of the Constitution that says each House has the power to make its own rules?

It would be a bad thing for the courts to get rid of the filibuster. That smells like a constitutional crisis to me.

Why is getting rid of the filibuster bad? All it is is some moron that managed to get elected blathering on about ANY subject as long as they want soaking up time and waiting until the particular members they want to leave the room to go so they can try to push legislation through [or prevent it from being voted on before the session closes]

If they were blathering on about something relevant to the bill in question, I wouldn’t have a problem about it, but the moron could start dictating the entire contents of the last book they memorized, or why the designated hitter is bad until they die of a stroke [or the rest of the room is bored unto death]

[Jack_Batty]

If they were blathering on at all, I’d be on the side of the filibuster. Unfortunately the only thing one needs to do to conduct a filibuster these days is to say, “I want to filibuster.”

It’s laziness, pure and simple.

[Chronos]

The procedural filibuster is a bad thing, and it’s good that there are at least four legislators who realize this, but this is not the way to get rid of it.

[Martin_Hyde]

I don’t think they have a case. SCOTUS does not like to get into the internal procedures and operations of the legislature, which are constitutionally permitted to self-regulate themselves.

But yeah, the filibuster may in a small number of cases be a good thing. Overall it has created a supermajority house in the legislature and is a blight on the operation of our government. I’d love to see the Senate establish rules prohibiting it entirely, but I’m not really comfortable with the SCOTUS doing that.

[Snarky_Kong]

@John_Mace

The SCOTUS is not going to tell Congress how it must conduct its business. Did these 4 guys miss the part of the Constitution that says each House has the power to make its own rules?

SCOTUS has done so before in United States v. Ballin.

[John_Mace]

@BigT

But those rules can’t violate the constitution.

And the filibuster doesn’t.

@aruvqan

Why is getting rid of the filibuster bad?

I said it would be bad for the court to get rid of it.

I’m of the mind, too, that the good old-fashioned filibuster has its place, but the procedural one is bad. So, if someone said we needed to get rid of the filibuster, I’d ask: which one?

[Bricker]

I regard their chances of success as slight.

And I also regard their chances of buyer’s remorse, should they win, to be high, because when the Democrats are in the minority that filibuster is surew going to seem like a neccessary bulwark against the tyranny of the majority.

As the wise folks at the New York Times put it in 2005:

The Senate, of all places, should be sensitive to the fact that this large and diverse country has never believed in government by an unrestrained majority rule. Its composition is a repudiation of the very idea that the largest number of votes always wins out. The members from places like Rhode Island, Maine or Iowa know that their constituents are given a far larger say than people from New York simply by virtue of the fact that each state has two votes, regardless of population. Indeed, as a recent New Yorker article pointed out, the Democratic senators who have blocked that handful of judicial nominees actually represent substantially more Americans than the Republican majority that wants to see them passed.

While the filibuster has not traditionally been used to stop judicial confirmations, it seems to us this is a matter in which it’s most important that a large minority of senators has a limited right of veto. Once confirmed, judges can serve for life and will remain on the bench long after Mr. Bush leaves the White House. And there are few responsibilities given to the executive and the legislature that are more important than choosing the members of the third co-equal branch of government. The Senate has an obligation to do everything in its power to ensure the integrity of the process.

A decade ago, this page expressed support for tactics that would have gone even further than the “nuclear option” in eliminating the power of the filibuster. At the time, we had vivid memories of the difficulty that Senate Republicans had given much of Bill Clinton’s early agenda. But we were still wrong. To see the filibuster fully, it’s obviously a good idea to have to live on both sides of it. We hope acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide.

Of course, times change. Administrations change. Control of the Senate changes. So the Times, after acknowledging its own error in being against filibusters during the Clinton years, in 2005 came out squarely in favor of the process.

And now… well, now the worm has turned again, and once again filibusters are evil and must be stopped.

I think it’s fair to say the practical effect of the Times’ support is that the filibuster should exist in Senate rules when the majority party is Democratic, and be retired when the majority party is Republican.

Undoubtedly these four senators are purists, unlike the Times, so we’ll just say that I believe their chances of prevaling are slight.

I don’t have a strong opinion either way. I just think the rules should be the same. I would support eliminating the filibuster right now, knowing that the GOP will eventually gain control of the Senate.

[Snarky_Kong]

@John_Mace

And the filibuster doesn’t.

Well, at least four members of congress disagree with you. This blog post gives more details on the argument. I’m no lawyer, so I’ll leave the merits to the better informed.

[Bricker]

@Snarky_Kong

SCOTUS has done so before in United States v. Ballin.

In Ballin they upheld the House’s ability to make its own rules about what a quorum was. They didn’t tell the House their rule was wrong.

[John_Mace]

@Snarky_Kong

Well, at least four members of congress disagree with you. This blog post gives more details on the argument. I’m no lawyer, so I’ll leave the merits to the better informed.

Perhaps we’ll see, but that’s a stretch of an argument. Whatever the founders might have “intended”, they didn’t write into the constitution that a majority vote must be the default condition unless the constitution states otherwise.

[gamerunknown]

Pft, the longest filibuster on record was by a Democrat. They should just own it.

[The_Hamster_King]

@Chronos

The procedural filibuster is a bad thing, and it’s good that there are at least four legislators who realize this, but this is not the way to get rid of it.

This.

The power of the minority to block the will of the majority should be used sparingly, and when it happens it should be a Big Deal. The traditional filibuster worked that way. Actually organizing a talking marathon to prevent cloture was hard and dramatic, thus making it worthwhile only for major issues that the minority cared very strongly about.

But the current situation with the procedural filibuster is insane. It essentially means that NO legislation can be passed without a supermajority, which goes against the intent of the Constitution and two hundred years of prior legislative tradition. It created governmental gridlock and destroys legislative accountability.

[Typo_Negative]

I don’t like the idea of a filibuster, but I agree that the court should not be involved.

[Buck_Godot]

I don’t see that this has any chance of going anywhere. The only hope would be to do a nuclear option like the Republicans tried to to way back when they were angry at the Democrats using it (about half as much as the Republicans do now). But I agree with Bricker that this would likely be a mistake in the long run. My feeling on the Filibuster is the same as my feelings on abortion. It should be safe, legal and rare.

[Ravenman]

It is interesting to note that John L. Lewis said this about the filibuster in 2005:

This nation has been made more fair, more just, more true to its own destiny by the voices of dissent that spoke out against injustice in America. . . . We do not want our elected representatives to be silenced. We do not want the voices of dissent to be stamped out in the U.S. Senate, because we know it may be the minority that saves us from ourselves.

Link.

Now, I take him at his word that he has had a change of heart on the matter and it’s just doing this because political winds have changed since then. But it does underscore that the average politicians’ view on the filibuster can be mercurial. (ETA: I am sure I can find very large numbers of Republican statements about how terrible the filibuster was in 2005, and how great it is today – my observation is anything but partisan.)

But the idea that the Constitution determines that Congress may only transact business though majority votes unless the Constitution grants an exception is clearly a bogus argument. For example, ordering a roll-call vote requires the assent of 1/5th of a quorum. Are we to believe that probably all roll call votes that have occurred in Congress for the last two centuries were unconstitutionally ordered because those votes were not ordered by majority? That is a laughable outcome, but it is one that is logically consistent with the idea that Congress may not waiver from majoritarianism unless the Constitution grants specific leave.

Which means, of course, that those who think the Constitution requires majoritarianism are inferring something from the Constitution that leads to ridiculous outcomes, and therefore that inference shouldn’t be taken seriously.

[Saint_Cad]

So what law or section of the Constitution are they violating?
And for those of you not familiar with Parliamentary Law: the motion Previous Question requires a 2/3 vote to end debate. The Senate equivalent is Cloture and only requires a 60% vote. What this means for you anti-filibusterist is that the alternative allows gridlock

BY AN EVEN SMALLER MINORITY :eek: mu-ha-ha-ha-ha

[silenus]

How about just modifying the filibuster rule to put some consequences in it? Change the rule to say that any filibuster that fails will result in the immediate expulsion of the senators who perpetrated it. That would take care of the bluffers real quick. If you care about the issue that much, then you should be willing to stake your political career on it.