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Dec 28 2012

Liberal Hypocrisy on Filibusters

I’ve written many times about how Republicans and Democrats often exchange scripts when it comes to the filibuster. When one party is in power in the Senate, the filibuster is a terribly evil idea that must be done away with; when that same party is in the minority, the filibuster is an absolutely essential tool to avoid majoritarian tyranny. Lather, rinse, repeat. But I’m pretty disappointed to see the liberal group Common Cause behaving the same way. They actually filed a lawsuit to get the filibuster declared unconstitutional, which was just (predictably) dismissed by a federal judge.

The judge, Emmet Sullivan of U.S. District Court for the District of Columbia, said “reaching the merits of this case would require an invasion” into internal Senate processes and “would thus express a lack of respect for the Senate as a coordinate branch of government.”

“The court acknowledges at the outset that the Filibuster Rule is an important and controversial issue,” Sullivan wrote. In recent years, the judge continued, “even the mere threat of a filibuster is powerful enough to completely forestall legislative action. However, this court finds itself powerless to address this issue for two independent reasons.”

Sullivan said the plaintiffs, the government accountability group Common Cause, four members of the House of Representatives and three individuals, do not have legal standing to challenge the filibuster rule. The judge rejected the argument that vote nullification—the alleged injury among the House members—reaches the threshold for legal standing.

“Second, and no less important, the court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests,” Sullivan said. “Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation.”

The judge is absolutely right on this, of course, and this lawsuit was ridiculous from the start. There was no way in hell the federal courts were going to intervene in the internal rules of the Senate (and that is an entirely separate issue from whether the filibuster should exist or not, and in what form). More importantly, Common Cause is being little more than a tool of the Democratic party here, flipping on the issue whenever the party does. Here is what they said in 2005 in a press release (which has now been removed from the Common Cause website), when it was the Republicans who wanted to get rid of the filibuster, at least for judicial nominees, and the Democrats were solidly in favor of it:

Common Cause strongly opposes any effort by Senate leaders to outlaw filibusters of judicial nominees to silence a vigorous debate about the qualifications of these nominees, short-circuiting the Senate’s historic role in the nomination approval process.

“The filibuster shouldn’t be jettisoned simply because it’s inconvenient to the majority party’s goals,” said Common Cause President Chellie Pingree. “That’s abuse of power.”

And now the entire filibuster itself is allegedly unconstitutional according to that same group. Come on, folks, let’s at least try to pretend to have some intellectual integrity.

18 comments

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  1. 1
    Wes

    There was no way in hell the federal courts were going to intervene in the internal rules of the Senate

    Well, I would say there’s no way the courts would intervene UNLESS the Senate made some internal rule that clearly violated the constitution or other important laws. If the Senate barred the minority party from voting or prohibited blacks from speaking, I would think the courts would put a stop to it. But in this case, there’s nothing about the filibuster that contradicts the constitution, so obviously no judge would want to touch that. I agree that the judge would be majorly overstepping his boundaries if he tried to meddle with the Senate’s rules without a very clear constitutional reason for doing so, and in this case there’s no such reason.

  2. 2
    Gregory in Seattle

    Each House may determine the rules of its proceedings…. — Article I, Section 5, para. 2, United States Constitution.

    The Supreme Law of the Land has spoken.

  3. 3
    naturalcynic

    The real probem is that the Senate cannot make reasonable rules for itself. When is there “…a vigorous debate about..” anything. Threats and bluster are enough for those weenies.

  4. 4
    tmscott

    I have no problems with the filibuster, whichever party is in power. My objection is to the “legislative hold”, which is nothing more than an implied threat to filibuster. The problem is that it is given the same power to stall progress of a bill or judicial appointment, as an actual filibuster.

    I think that if a senator wants to stall, he should be required to take the floor for as long as he can hold it, just like in the movie Mr. Smith Goes To Washington. It should be put up or shut up.

  5. 5
    comfychair

    The Dems are far from perfect, but look – if one side uses the filibuster to block a giveaway to billionaires, and the other side uses the filibuster to block payout of earned benefits to the unemployed, are the two sides really equally to blame?

  6. 6
    acroyear

    “Each House may determine the Rules of its Proceedings” – Article I, Section 5

    Not much more one can interpret that one. About as plain English as one gets in that document.

  7. 7
    acroyear

    That being said, I agree that the point of the filibuster, to avoid rammed-through legislation like what happened in Michigan through ensuring that there has been enough debate on it, has been grossly abused by both parties over the last few decades.

    But that remains an internal matter for the Senate and there is nothing in the Constitution that allows anybody else (other than the electorate who can vote on a third of the Senate every 2 years) can do to change it.

  8. 8
    Alverant

    How can we rewrite the filibuster rules so it can only be used for good? Or is the problem what people see as “good” depends on the person?

  9. 9
    grumpyoldfart

    In Australia any member can move that the person speaking “…be no longer heard”. The motion must be put to the vote immediately with no debate allowed. That shut’s ‘em up.

  10. 10
    bornagainatheist

    I agree that the lawsuit is ridiculous, but that doesn’t mean that the “liberals” are being hypocritical because they want something done about it. The Republicans have used the filibuster TWICE as much as at any other time in recent history, and nothing can get done. There need to be limits on it and I also believe they actually have to work for it by standing there and talking instead of just saying, “Oh, I don’t like that. I filibuster.”

  11. 11
    d.c.wilson

    Common Cause was being ridiculous and hypocritical. I can’t see how they thought it would even get passed the first motion hearing. Maybe they just filed it for the publicity.

    That said, the Senate desperately needs to reform the filibuster. The rules were set up so encourage careful debate, fulfilling the Senate’s role as the cooling saucer, to use the old metaphor. But today it is being abused in ways no one had ever envisioned. Yes, the democrats had used it to put holds on Bush’s judicial nominees and they went too far then, but the GOP’s abuse of it goes beyond that. They’ve had a record number of filibusters in the last four years, blocking even non-controversial bills and nominees just because they could. Hell, McConnell recently filibustered his own bill after Reid called his bluff.

    Here’s what I think needs to be done:

    1) No more anonymous holds. If you want to block something, take the floor and accept the consequences.

    2) For that matter, don’t just threaten a filibuster, go back to the days of Mr. Smith and talk the bill to death.

    3) No filibusters on motions to proceed. Right now, the minority can effectively filibuster the same bill twice. Once to begin debate and once to end it.

    4) No filibusters on nominees.

    5) After a set number of votes, the vote to end debate drops from 60 to a simple majority. Hell, the Vatican uses that rule if they can’t get a supermajority to elect a Pope.

  12. 12
    speed0spank

    I don’t agree with this, that it is unconstitutional, however you can’t say it’s the same on both sides. I can’t recall who said it but something along the lines of
    Q: Weren’t you in support of the filibuster when you were the minority?
    A: That was 300-something filibusters ago

    I think that is the big difference. I don’t think that is an excuse to get rid of it all together because I’m sure people I highly disagree with will be the majority again one day and it is crucial. I do think that the way it is being used now as opposed to how it was used by the last minority is apples and oranges. It has gotten so bad that the right will say things like “this needs a super majority to pass” before anyone even filibusters. It is just assumed that they will filibuster. That makes the whole political process almost impossible as we have seen over the past few years.
    If they want to filibuster they should at the very least be made to talk. If you can’t even get out of your chair and flap your gums, you must not feel that passionately about whatever it is that you’re trying to block.

  13. 13
    Area Man

    While the filibuster is clearly not unconstitutional, requiring a super-majority for routine legislation is not what the authors of the Constitution had in mind. If they had wanted that, they would have said so (super-majorities are required for some things). As it stands, governing is impossible if a 60 vote majority is required and the minority party has taken a blood oath to oppose everything the majority does purely for the sake of obstruction.

    The simple fix is that the Senate should change its rules, which it can do by simple majority.

  14. 14
    jose

    So if each house can make its own rules, what stops the majority party from banning the filibuster for the next 2 years, then installing it again for elections just in case they lose, rinse, repeat?

  15. 15
    d.c.wilson

    jose@14:

    So if each house can make its own rules, what stops the majority party from banning the filibuster for the next 2 years, then installing it again for elections just in case they lose, rinse, repeat?

    Senate rules require a supermajority to change the rules, except at the beginning of the session, where a simple majority can do it. So,theoretically, the democrats could eliminate the filibuster on day one of the session, but they couldn’t reinstate it right before the 2014 elections.

  16. 16
    Brett

    I think the constitutional argument they were making was more valid than they got credit for. I just read through article 1 of the constitution and while they do have the power to set their own rules, the constitution is also pretty specific about what things require a super majority, and says very specifically that each senator only gets one vote. If a senator happens to simply not stop talking (Mr. Smith style), that’s one thing, but if they say directly “I’m going to make this require 60 votes” and then stop talking (as I saw Senator McConnell do recently), that seems to be either counting them as getting more than one vote, or changing what circumstances constitutionally require more than 51. Sadly, I don’t think constitutional validity had anything to do with that group proposing it, it seemed purely self serving.

  17. 17
    F [is for failure to emerge]

    Pff. Minor symptoms. What is needed is evidence-based legislation rules and a major examination of the underlying assumptions about what is “good”. The entire process is a study in bullshit.

  18. 18
    maddog1129

    Off Topic …

    Can someone direct me to the best place to contact/comment about site features? I’m not seeing the general “contact me” button.

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