Re: The Senate Filibuster: The Politics of Obstruction

Re: The Senate Filibuster: The Politics of Obstruction
May 18, 2012

This article is written not to debate the merits of the filibuster, whether the filibuster is good, bad or even ugly. This article is written in direct opposition to the argument of Emmet J. Bondurant’s article that the filibuster is unconstitutional. This article is written to argue that the filibuster is a constitutional procedure and will be upheld as so if brought before the Supreme Court. If opponents of the filibuster hope to remove it from the Senate’s proceedings, it will have to come from the within the Senate itself.

To begin, the purpose of our constitution is to determine the rules of our government’s operation. We famously have a system built on the separation of powers, which gives certain abilities to the House of Representatives, the Senate, the President and the Supreme Court. The majority of the constitution articulates certain powers that each branch possesses and may use to check the power of other branches. There are also some rules that govern the internal workings within each respective branch. The Bondurant article cites the Supreme Court Case of US vs. Ballin as an example that rules may not “adopt rules that violate other provisions of the Constitution, which the filibuster does.” This is confusing because nowhere in the constitution is it written that a filibuster is a violation. Nor does the constitution give specific instances that require a three fifths vote, as the current filibuster requires. It does require two thirds to pass treaties, convict members, etc., but in all other instances vaguely establishes that “each House may determine the rules and Proceedings.” This is referenced in Article I Section V Clause II.

This was supported by Justice David Brewer who delivered the opinion of the majority and determined that “the constitution empowers each house to determine its rules of proceedings.” He continued to write constitutional restraints and fundamental rights should be respected but “within these limitations all matter of method are open to the determination of the house” and are “absolute and beyond the challenge of any other body or tribunal.” Simply put, if the constitution doesn’t specifically articulate a rule, then that rule shall be determined by the house.

The US vs. Ballin case was brought before the Supreme Court, not for a filibuster related issue, but to resolve the question over the quorum requirements for the House of Representatives. Article I Section V Clause I, determines quorum for each house as being a simple majority. All other rules fall under Clause II and would be determined by their respective house. If the founding father really wanted all votes aside from the prescribed ones written in the constitution, they would have included a clause that restrains voting to simple majorities. If brought before the Supreme Court this distinction will be easily identified and the filibuster will be upheld.

Reform Our Republic does not take a position on the filibuster procedure. This organization is focused on reforming America’s election system, from one that benefits the small obnoxiously wealthy faction and promotes a politically extreme atmosphere. However, if brought before the Supreme Court, Reform Our Republic predicts that the court will rule the filibuster as a constitutional procedure. The future of the filibuster lies squarely in the hands of the Senate majority party. The likely removal of the of the filibuster procedure will come from the efforts of freshman senators Tom Udall (D-NM) and Jeff Merkley (D-OR) and their successful conversion of their party leadership’s opinion on the filibuster’s effect on legislating within the Senate. The filibuster may require two thirds to override it, but a simple majority is all that’s necessary to defeat it.