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Filibuster -- Constitutional

Trying to make sense of a crazy world, with limited success mostly
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woodworker
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Filibuster -- Constitutional

#1

Post by woodworker »

UC Berkeley Law Dean Erwin Chemerensky and Burt Neuborne, Norman Dorsen Professor of Civil Liberties at New York University School of Law, argue that Kamala Harris can rule that the filibuster is unconstitutional.
https://www.latimes.com/opinion/story/2 ... titutional. Thoughts from legal scholars, and you too Stern (yes, I owe you two pastrami sandwiches by now).
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Re: Filibuster -- Constitutional

#2

Post by Foggy »

I don't do legal scholarship, but I approve of her trying it.

It would sure give Faux News something to yap about! :mrgreen:
Out from under. :thumbsup:
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Re: Filibuster -- Constitutional

#3

Post by noblepa »

I realize that the Constitution specifically gives the Senate the authority to make their own rules.

However, I don't believe that those rules should be allowed to contravene other provisions of the Constitution. Specifically, the part where the Constitution addresses the way in which a bill becomes law. It says "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States". The common usage of the phrase "shall have passed" is, I believe, normally taken to refer to a simple majority.

For that reason, I believe that the filibuster is unconstitutional. The Constitution says nothing about a super majority, or about a bill passing, only if the minority in the Senate approves.

I'm a democrat and I also realize that someday, the R's will once again have a majority in the Senate. When that happens, the lack of a filibuster will put the D's at a disadvantage. But, that's what elections are for. If the majority of the voters choose the Republican agenda over the Democrats', so be it.

The filibuster, even if it IS constitutional, is simply WRONG.

If they must retain the filibuster, return it to the way it was in the old days. A senator wishing to filibuster a bill must stand in the well of the Senate and speak continuously, ala Jimmy Stewart in "Mr. Smith Goes to Washington". All other Senate work stops.

Today, a Senator can simply say "I object to this bill". He/she can even do it anonymously. Life goes on as usual, except that no action can be taken on that particular bill.
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Re: Filibuster -- Constitutional

#4

Post by p0rtia »

:yeahthat:
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Re: Filibuster -- Constitutional

#5

Post by northland10 »

I do not see the filibuster as unconstitutional. Except for various places where a specific amount is specified, the Constitution is silent. We can say a simple majority must be the way but not every organization believes in a simple majority, so, it would be up to the rules of the body on what is required.

In considering the filibuster, it helps to consider the traditional platform of each house. The House of Representatives, being a larger body, representing various smaller districts, and being short-term, has traditionally been the representative for the people. They represent our individual whims and current interests. They are our emotional side.

The Senate, representing the entire state (whether by the old selection version or the current popular vote of the state), not the individuals of a district, and being selected for longer, staggered terms, are the deliberative body. They are the "let's think this through" side of our personality. Their job is to sometimes slow things down and I am fine with that. They need to look at the bigger picture. The filibuster is one method to accomplish that task.

All this being said, I agree that the filibuster and other methods for being deliberative have been hijacked for the sole purpose of being obstructionist, not on particular bills but to obstruct in general.
noblepa wrote: Tue Mar 23, 2021 9:50 am If they must retain the filibuster, return it to the way it was in the old days. A senator wishing to filibuster a bill must stand in the well of the Senate and speak continuously, ala Jimmy Stewart in "Mr. Smith Goes to Washington". All other Senate work stops.

Today, a Senator can simply say "I object to this bill". He/she can even do it anonymously. Life goes on as usual, except that no action can be taken on that particular bill.
Yeah, that^^^ The Senator who wishes to slow down the process needs to take responsibility for that slowdown and take the consequences that go with it. If they filibuster a bill, everything stops. The chamber cannot continue regular business and the person(s) who is running the filibuster must keep talking. Then, filibusters would only happen when they really wanted to slow something down (and also, by inconveniencing everybody else, force a quicker vote on cloture). Even the party of the filibuster would need to decide if this bill was important enough for them to not be able to continue the floor business.

We do need to remember that the Congress has over 200 years of playing wild games with the rules. This is most definitely not a new issue.
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Re: Filibuster -- Constitutional

#6

Post by noblepa »

I have heard explanations, attempting to justify the filibuster. To me, the arguments always boiled down to "we're in the minority, but we want to have a veto over everything the Senate does".

Frankly, I'm not even sure that the Senate, itself, should continue to exist. It is inherently undemocratic. Someone pointed out the other day that a Wyoming resident has 65 times the clout in the Senate than a California resident does. Both states have two Senators, but California has 65 times as many residents.

I remember being taught in school that creating the House and Senate was a compromise between those who believed that all states should have equal representation in the legislature and those who felt that such representation should be proportional to the population size.

The House of Representatives has gotten along fine without the filibuster, for 232 years.

As I said, I am willing to live with the consequences of having no filibuster in a Republican controlled Senate, in the future.
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Re: Filibuster -- Constitutional

#7

Post by northland10 »

As I said upstream, the Senate is not, nor has ever been considered the same as the House. That things slow down there is a feature, not a bug. There is also some truth to protecting the minority view, to a point. The House has worked well without a filibuster because its purpose is to be more attuned to the immediate whims of the people and more reactionary than the Senate. And being the part of Congress that represents the individuals of the country, they were given the purse strings as all spending has to start with them.

If the Senate were the same as the house, what is the need for separate chambers? Bicameral chambers are only useful if they have their own character that adds to the overall process. If they are the same, we lose some of the founders' ideas which have lasted much longer than other nations.

I, for one, don't have a problem with the government being slow. It prevents them from doing too much damage too quickly. Just like my ideas sometimes need the breaks put on, so do the government's ideas. It's slow. It's annoying. It protects liberty.

Still, abuse of the processes for slowing things down needs to be stopped. They need to make it much harder to filibuster.

But, if people want things to move faster, they have to have a larger control of the chamber. If they can only get 50, then they have to live with the consequences like any split government. We can't blame gerrymandering for not capturing the Senate.
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Re: Filibuster -- Constitutional

#8

Post by Reality Check »

northland10 wrote: Wed Mar 24, 2021 3:09 pm :snippity:
If the Senate were the same as the house, what is the need for separate chambers? Bicameral chambers are only useful if they have their own character that adds to the overall process. If they are the same, we lose some of the founders' ideas which have lasted much longer than other nations.

I, for one, don't have a problem with the government being slow. It prevents them from doing too much damage too quickly. Just like my ideas sometimes need the breaks put on, so do the government's ideas. It's slow. It's annoying. It protects liberty.

Still, abuse of the processes for slowing things down needs to be stopped. They need to make it much harder to filibuster. :snippity:
The Senate is different from the House with or without the filibuster. The problem is with the filibuster the Republicans have made it nonfunctional. It's only by carving out exceptions for nominations and some spending bills that anything gets done. The filibuster is not in the Constitution and only came into being by the accidental removal of the rule on the "previous question" motion rule by Vice President Aaron Burr in 1805 when he was streamlining the Senate rule book. This oversight lay dormant until several decades later when the senators from the southern states discovered that without this rule they could filibuster against anti-slavery legislation.

Going back to the talking filibuster would effectively end it if the rule required one senator to continuously hold the floor until he gave up or died. Unless you make the rule that draconian you may has well just leave it alone because at least the Senate can get other work done while the imaginary filibuster is in place.
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Re: Filibuster -- Constitutional

#9

Post by AndyinPA »

https://thehill.com/homenews/senate/544 ... ing-rights
Sen. Angus King (I-Maine) signaled on Wednesday that he would support changing the Senate's rules if Republicans block voting rights legislation.

King, who has long been viewed as wary of changing the filibuster, laid out his thinking in a Washington Post op-ed, saying he viewed voting rights as a "special case."

"All-out opposition to reasonable voting rights protections cannot be enabled by the filibuster; if forced to choose between a Senate rule and democracy itself, I know where I will come down," King wrote.

Opponents of the filibuster have long viewed voting rights and sweeping democracy and election reforms as fertile ground for swaying Democratic senators wary of changing the rules.
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Re: Filibuster -- Constitutional

#10

Post by northland10 »

Reality Check wrote: Wed Mar 24, 2021 4:10 pm Going back to the talking filibuster would effectively end it if the rule required one senator to continuously hold the floor until he gave up or died. Unless you make the rule that draconian you may has well just leave it alone because at least the Senate can get other work done while the imaginary filibuster is in place.
I'm perfectly fine with going back to the talking filibuster. If they are going to prevent something from being voted on, then they are going to have to pay that price. I would hope that would cut it down to only those times the opposition finds it absolutely necessary and not as a normal course of business. If that does not fix the issue, then maybe it's time for it to go.

It might be easier to get some support from across the aisle if they try to restrict it instead of eliminating it outright. Admittedly, the GOP is much better about enforcing conformity so it is harder to nip at the edges for their caucus, but doesn't hurt to try.

I guess the Democratic caucus should have abused it to death when the GOP was in charge. That might have gotten them to fix it for us. The problem is, them screaming about obstruction sticks better than screaming about their obstruction.
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Re: Filibuster -- Constitutional

#11

Post by noblepa »

northland10 wrote: Wed Mar 24, 2021 7:27 pm
Reality Check wrote: Wed Mar 24, 2021 4:10 pm Going back to the talking filibuster would effectively end it if the rule required one senator to continuously hold the floor until he gave up or died. Unless you make the rule that draconian you may has well just leave it alone because at least the Senate can get other work done while the imaginary filibuster is in place.
I'm perfectly fine with going back to the talking filibuster. If they are going to prevent something from being voted on, then they are going to have to pay that price. I would hope that would cut it down to only those times the opposition finds it absolutely necessary and not as a normal course of business. If that does not fix the issue, then maybe it's time for it to go.

It might be easier to get some support from across the aisle if they try to restrict it instead of eliminating it outright. Admittedly, the GOP is much better about enforcing conformity so it is harder to nip at the edges for their caucus, but doesn't hurt to try.

I guess the Democratic caucus should have abused it to death when the GOP was in charge. That might have gotten them to fix it for us. The problem is, them screaming about obstruction sticks better than screaming about their obstruction.
That would be a good first step.

And, they don't need the R's to do that. It only takes a simple majority to change the Senate rules. It might be more palatable to filibuster supporters.

I would also like to see a change in Senate rules saying that presidential appointments, especially judicial appointments MUST be acted upon within 120 days of receiving the nomination from the president. That would prevent a repeat of the Merrick Garland episode in 2016, when Mitch simply didn't agree to hold hearings. I'd like the time limit to be 90 days, but that might not be realistic.
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Re: Filibuster -- Constitutional

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Post by northland10 »

noblepa wrote: Wed Mar 24, 2021 7:39 pm I would also like to see a change in Senate rules saying that presidential appointments, especially judicial appointments MUST be acted upon within 120 days of receiving the nomination from the president. That would prevent a repeat of the Merrick Garland episode in 2016, when Mitch simply didn't agree to hold hearings. I'd like the time limit to be 90 days, but that might not be realistic.
Yeah. that would be a good start too. Maybe some limits on the blue slip holds as well.
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Re: Filibuster -- Constitutional

#13

Post by chancery »

Didn't the Republicans trash the blue slip under Trump, at least as to Court of Appeals judges?
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