Tuesday, May 15, 2012

Is the Filibuster Unconstitutional?

That is the question the Washington Post asks, and which the subject of their article answers in the affirmative. Now, I have some questions. Asking questions is good. First, let's sit down and read the article. Come back after the jump when you are done.

Now, my first comment is that since Bondurant acknowledges that Congress's rules allow the filibuster, is that he's got quite a row to hoe. First, he has this hurdle: "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member." To get over it, he cites to Ballin. He quotes: "The Constitution empowers each house to determine its rules of proceedings,... [it] may not by its rules ignore constitutional restraints or violate fundamental rights.”

So, naturally, that seems pretty strong. Let's look at the rest of the decision. Why did you think I linked that for you? Ballin actually finds that the rule was passed legitimately.
"The question, therefore, is as to the validity of this rule, and not what methods the speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."
So, even with the case he chose to point at, it is clear that the judicial review of Congress's rules is minimalist at best. So, in what way does the filibuster ignore constitutional restraints or violate fundamental rights? Bondurant states:
"In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution."
The argument seems to be that these six things are specifically called out, therefore no other thing can possibly be considered. So, the question here is whether by specifically calling out these instances, the Constitution implies that every other situation must be resolved by a majority vote. But, if that were the case, why not write that in, specifically, while also reserving the power to Congress to make their own rules? When the Constitution wants to specifically ban something, it is clear. "Congress shall make no law," "No Person shall be a Representative who shall not have attained to the Age of twenty five Year," etc., so on, so forth.

The Constitution, even has to go out of its way in the Tenth Amendment to specifically say: "If we did not mention powers reserved to the federal government, it belongs to the people." Now, the powers it is discussing there have to do with citizens' rights. In fact, it is easy to find a case in point where the filibuster has been dealt with in a constitutional way. The House of Representatives, for example, has managed to find a way to get rid of the filibuster without judicial fiat. The nuclear option is even something most people probably know about. There's no reason to believe that the Constitution, when it was clear about marking areas for the legislature to follow, meant only those specific things should be restricted to a two-thirds vote.

Bondurant points to the fact that there was a careful compromise created to ensure balance between the states. But, he fails to note that how states choose their senators has changed since the original creation of the Constitution. We have moved to actually having more democratically elected representatives. If anything, that makes the Senate even more likely to be prone to the same passions that the Founding Fathers wanted it to cool. That a minority can hold some power is actually one of the good things about our representative democracy. It prevents the tyranny of the majority; the minority is always in a precarious position of having one or two key votes picked off (Ben Nelson and Scott Brown say hello!) Further empowering the majority may make things run smoother, but it takes us further away from the idea of having a deliberative body up there.

Next, let's get to the point where Bondurant tries to sue the Senate. He needs to state a specific damage to have standing, is my understanding of how this works. What particular filibuster does he want to challenge? How was he damaged by it? Under what prevailing law is he suing under? It's a cute idea, but I don't see how he plans to make it work practically.

Which, I guess, is what I think about the whole article. It has some pretty graphs, but, when you get down to it, he misrepresents the court case and doesn't really present a clear case.



By the way, I have an idea to solving the super majority problem. Pass smaller, discrete, targeted bills instead of omnibus bills with everyone's pet cause stapled on. One bill, one goal. It's novel, but at least I don't have to incorrectly interpret a Supreme Court case to reach that decision.

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