Uncommon Sense

November 27, 2013

The Filibuster Should Be . . . in the House or Gone (A Repost)

Note I originally posted this some time ago but due to the Nuclear Option being exercised, I think the salient points need to be restated, so. . . . 

I get the idea of the filibuster. It is a mechanism to prevent “tyranny of the majority,” which is where 51+% of the population can dictate to rest. This was an occasional rule change in the Senate requiring first a 2/3 (67+%) majority and now a 3/5 majority (60+%). It was used sparingly in the past and only for the most important topics because people felt it was a two edged sword. But the designers of the filibuster (which is not mentioned in the Constitution) couldn’t have foreseen one of the two major political parties wanting to discredit the government and hold the rest of us hostage.

There are two problems with the filibuster, well, three. The rest of the civilized world gets along fine without such a thing so we could do without it entirely. Secondly, it is now used too often, so if it is to be retained its use needs to be limited. Something like each party gets three filibusters per legislative session (two years) would work. And the third is that the filibuster is in the wrong house of Congress, it should be in the House. Let me explain.

The bicameral legislature we were provided by the Constitution was a late addition to the Constitutional debates and was a compromise to address one particular problem: the fear of the tyranny of the majority. In 1790, the U.S. population was 3,929,214 and six states: Virginia, Pennsylvania, North Carolina, Massachusetts, New York, Maryland had 66.5% of that population. The smaller states (commonwealths, whatever) were worried that the high population states could dictate to the low population states (the top four: Virginia, Pennsylvania, North Carolina, and Massachusetts had 50% of the population). The two models being talked about most were a single house of legislators, elected by population, and a bicameral or dual house of legislators (House and Senate) also elected by population. Obviously the “small” states were suspicious of the “big” state’s political power, so the compromise that sealed the deal was for there to be fixed representation in the Senate (two per state), with six year terms compared to only just two year terms in the popularly elected House to make it more of an intellectual and deliberative body.

Fast forward 220 years to 2010 (census data are only available for years that are multiples of ten, everything in between is estimated). We now have 50 states, not 13, the population is 80X higher at 311,592,000 and the top six states (California, Texas, New York, Florida, Illinois, and Pennsylvania) still have much of the population (40.9%) but the key point is that the bottom 21 states have 10.4% of the population. Each of those states has two senators and, hence, have 42 votes in total, which is unbeatable if a filibuster is in place. And currently there are no limits on the number of filibusters.

Now, I am not saying that all of the Senators in 21 states will block legislation, just that they can. In fact the bottom 41 of the 50 states have only 45.8% of the population so you only need the equivalent of 21 out of those 41 states to be able to block any or all legislation going through Congress. Talk about the Tyranny of the Majority Minority. A very small fraction of the population of the U.S. has enough votes to stop the government cold. And if you don’t think that is the plan currently underway, consider the fact that the previous Congress passed the fewest bills of any Congress for which there are statistics.

If the filibuster were limited in number as suggested above and it were in the House, it would take Representatives representing a minimum of 41% of the population to filibuster a bill. That would protect the minority . . . and the majority.

One of two parties has a stated goal of reducing the size of the Federal Government. One of the two parties has filibustered everything in sight. That party is in favor of minority rule.

Tutsis meet the Hutus. Sunnis meet the Shias. Democrats meet Republicans. Welcome to the Banana Republic of America where the minority rules.

July 17, 2013

Advice and Consent Bullshit

The Democrats have once again failed at filibuster reform. They say they have succeeded because the Republicans have decided to go along with the Constitution and centuries of Senate practice for a while, but the rules are still the same and the Republicans can go back to their obstructionist ways at any time.

Mitch McConnell, Senate Minority Leader, said that if Majority Leader Harry Reid pulled the trigger on the “nuclear option” to change the filibuster rules so that they could not be used to block appointments to the President’s administration, that he would be remembered as the worst Majority Leader in history, that the Constitution calls for “advice and consent” not rubber stamping of nominees.

Sen. McConnell’s logic is appallingly bad or possibly missing. By claiming that Republicans must be able to filibuster such appointments, he is apparently claiming that the thousands of nominees passed by the Senate by a simple majority were somehow mere rubber stamping exercises and only a super majority of 60 votes would constitute “advice and consent” of the Senate.

“The talking filibuster should be reinstated as the historical and traditional function of the Senate that it is.

Article II of the Constitution (remember the Constitution?) provides that the President “. . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Note that treaties require a two-thirds majority while others are “ordinary business” which for many decades were decided by simple majority vote.

To argue that the Senate can say “no” is correct (they must give their “consent”), but the common feeling on cabinet and administration appointments is that the President should have who he wants working them, unless there are really serious reasons to not have such persons on board. But this is not what the Republicans are doing. They are clearly trying to cripple some of the Executive branches functions (Labor Relations Board, Consumer Protection Agency, etc.) by denying them leadership, even sufficient members to function at all, which is an attack upon the separation of powers and must not be tolerated.

And the filibuster rules still need reforming: the talking filibuster should be reinstated as the historical and traditional function of the Senate that it is, for one.

May 30, 2013

Here Is How to Fix the Filibuster Rule

Filed under: Politics — Steve Ruis @ 6:13 am
Tags: , , , ,

I understand the allure of the Filibuster Rule; it constitutes a protection from what is called the “tyranny of the majority,” in effect, when one of the two parties in our two-party system has a temporary majority in Congress (history shows us all majorities are temporary), they are then able to push through legislation that is hurtful to the minority. And when it is was used sparingly, typically only on landmark legislation, it served that role. But here’s the thing, how can a rule be described as protecting the rights of a minority party when that party has a majority in the other house of Congress? Does not having control of one whole house of Congress constitute enough protection for that party’s rights?

“Does not having control of one whole house of Congress
constitute enough protection for that party’s rights?

 Currently Senate Rules allow for a change from a 50+% vote to enact legislation (or even to call for a vote) to a 60+% vote at any time for any reason by any senator. (A presidential veto can change the rules even more, requiring a 67% majority in both houses to over ride a veto.) But these rules have allowed one party to change divided government into one party control of Congress. By filibustering everything in sight, the Republican Party has a majority in the House and an effective majority of only 40+% in the Senate, resulting in nothing getting through Congress of which it does not fully approve. When the Democrats controlled both houses of Congress, the Filibuster Rule, used willy-nilly, gave Republicans effective control of the Senate. So, the Filibuster Rule gives us divided government when we have majority government and majority government when we have divided government.

To fix this problem, the Filibuster Rule in the Senate should only apply when one party controls both houses of Congress and it should only apply to the minority party.

It is tempting to say it should apply only apply when one party controls both houses of Congress and the White House, but that wouldn’t respect the separation of powers in the Constitution. This way, there would be true protection of minority rights and we would avoid what we have now, which effectively constitutes a “tyranny of the minority.”

 

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