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Filibusters and the warping of the SenateCOMMENTARY | March 70, 2010There’s a place for filibusters, Fordham political scientist Tom DeLuca says, but he holds that using them routinely to block legislation in the Senate is not only wrong, it’s unconstitutional.
By Russ Choma
choma@niemanwatchdog.org When the Constitution was being framed, filibusters weren’t there under the glass. Like many other significant parts of modern political life and gamesmanship, they were written into the process by a rule change, and slowly expanded and altered over the years by precedent, codified mainly in Senate tradition. In fact, the processes are so accepted as part of the normal flow of legislation that proposals to remove them are considered so dramatic and earth-shattering, they are hyperbolically compared to nuclear war. The fact that filibusters are so normal is not only wrong, it’s unconstitutional, Fordham political scientist Tom De Luca says. They have become such a common and even casual action, they are now accepted as part of the legislative process. But they contradict the principles laid out by the Constitution and its framers, he said.
The Constitution grants each house of Congress the right to make its own rules to manage daily business, and that is what the filibuster was when it was devised as a strategic tool for raising the red flag on an issue or buying time to rally votes. Today, the threat of a filibuster or a hold hangs over practically every item of business in the Senate, even when no rumors of one are even being circulated. There is a belief– among the members of the Senate and the media – that without 60 votes to support a measure, there is no chance of victory. That notion is contrary to what the Constitution calls for and the Framers intended, De Luca told me in a telephone interview.
I spoke to DeLuca as part of a new Nieman Watchdog project on Congress. De Luca, who specializes in democratic theory and practice, is a frequent television commentator and op-ed contributor on the subject, whose latest book, “Liars! Cheaters! Evildoers! Demonization and the End of Civil Debate in American Politics” examines how modern political dialogue became so pointed and bitterly partisan. In a recent essay for the Christian Science Monitor, De Luca held that outrage over the possible use of reconciliation to get a health care bill passed should be redirected at the filibuster’s corruption of the Constitution.
It is widely stated, a given in some quarters, that Congress is broken. Often cited are the crippling effects of filibusters and their sibling, the hold. A hold allows a single member of the Senate to block any piece of legislation or business, including presidential appointments and other actions.
“The founders were pretty clear on the majority rule principle,” De Luca said. “There was always the assumption that majority rule would be determinative, so both in the words of the Constitution and the intentions of the writers, the idea of a supermajority for simple legislation, or even major legislation as not considered.” The Senate can set its own rules but that doesn’t mean that a rule can become the governing standard, De Luca said. Filibusters and holds when used as strategic delays, for instance to buy time to count votes, don’t obstruct the flow of the legislative process, De Luca said. However, he said that
“In my opinion, any use of the filibuster that does anything more than delay a majority vote decision would amount to a Senate rule that is, in effect, unconstitutionally changing the decision rule that is in the Constitution,” De Luca said.
Regular use of the filibuster to block, not delay, legislation also undermines a vice-president’s ability to exercise his constitutional powers. “The vice-president is given exactly one power in the constitution – which is to break tie votes,” De Luca said. “The filibuster makes it impossible for him to do that.”
Aside from what is – or isn’t – written into the text of the Constitution, De Luca said there i
“In the Federalist papers and in the compromises leading to ratification you can find examples of why simple majority rule had to be assumed for legislation,” De Luca said. “It’s inconceivable that the founders would have allowed super-majorities in through the back-door. They were very conscious of it.”
During the debate over ratification of the Constitution, Southern delegates pushed for a super-majority to be necessary for passage of navigation treaties, De Luca said, but ultimately relented in exchange for an extension of the slave trade.
De Luca also points to several instances in the Federalist Papers where a fear of a super-majority is described. In Federalist Number 75, for example, Alexander Hamilton railed against a proposal to require a super-majority to convene the Senate and House, complaining “that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority.”
De Luca acknowledges he isn’t the first person to broach the subject. In January, Tom Geoghagan, a prominent labor attorney and former Democratic candidate for Rahm Emanuel's congressional seat, penned an op-ed in the New York Times making a similar point. The so-called “nuclear option” is hotly debated periodically as a way to give the majority the ability to have an “up or down vote,” and the mechanism for doing so has been examined by the media. But there are several rationales for using it, and De Luca's suggestion -- to restore the Senate to basic majority rule as the Constitution seems to call for -- is rarely delved into. More frequently, the focus is on having the Senate president rule that the Constitution allows for every new group of senators to pick their own rules, which would void the current rules that have been apssed down and only altered by a vote of the body.
Under the “nuclear option” – or “constitutional option” – the Senate president could rule on the use of the filibuster unilaterally as the chairman of the meeting or in response to a point of order from a senator. Either way, new precedent would be set and the requirement that 60 votes are needed to stop debate would be demolished.
Along with an attempt to void the old set of rules allowing the filibuster, De Luca's proposal has been noted in recent reviews of the "nuclear option" by the Harvard Journal of Law & Public Policy and the Congressional Research Service.
De Luca writes in his Monitor piece that Vice-President Joe Biden should rule that the filibuster is unconstitutional. But he won’t, De Luca told me, noting that there are simply too many political pressures at the moment. Some in the majority fear they may be the minority in six months and some in the minority aren’t confident they won’t still be. So as difficult as the filibuster is making the legislative process, no one is particularly eager to take action, De Luca said.
In theory, the Senate could also vote to change its own rules, rewriting or doing away with the filibuster rule, or senators could simply change their behavior and return to less frequent uses of the tactic – and never for the purpose of stopping a bill. But, De Luca said, the source of the problem – bitter partisanship and a culture that encourages strict party discipline – is also what is preventing its resolution.
“The fact it’s so partisan both makes it difficult to get the minority to stop it, almost makes it difficult to get a rule change,” he said.
The very need to ask the question of constitutionality is an indication of how badly warped the Senate’s legislative process has become, DeLuca said. The premise of his argument is not that the filibuster’s very existence is problematic, but rather that its routine use is. And nobody thinks twice about it, De Luca said. It has not only become institutionalized, it has become the accepted way to operate. National political strategies are now built on capturing 60 votes, and anything less isn’t enough to build a political agenda on.
“Partisanship is actually becoming a major part of the process,” De Luca said. “And what is really striking to me, and what people really need to think about, is how normal people think it is.”
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