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Or more simply put, Why is the Filibuster constitutional?

Well the Constitution allows the Senate to set its own rules, with a simple majority vote, at the start of each session.

So obviously it -- the Filibuster Rule -- it's allowable.  The Senate has to call an end to debates, and take a vote on proposed bills, somehow right?

What's that?  The Filibuster doesn't do that?  A Senate Filibuster does the exact opposite of that?

It prevents debates from happening; it prevents votes from ever happening on proposed bills, all based on a single objection, and a Minority coalition (41 votes).

Well THAT -- a single objection can block a Vote -- is something most people should have a problem with. -- THAT is the primary reason why we have a "Broken Congress" in the first place, because of routine and endless use of Vote-blocking Filibusters. Without even the courtesy of a debate.

THAT is something that even the Founders of the Constitution, would have a problem with, I suspect, -- if they were around today to comment on their "constitutional legacy."

But given their clear preference for simple Majority rule, the Founders explicitly stated within our nation's founding document itself ... we might be able to hazard a guess, as to what they might think about this "concept" called the Filibuster. That these per-eminent Statesmen just might have an "Objection" or two about it, themselves ...

People say we should read and follow our the Constitution. That is very good advice.

Perhaps our oh-so deliberative Senators should take it. Especially with respect to this vote-blocking device they've invented: The Silent Filibuster.

Why the 'Silent' Filibuster Is Unconstitutional

by David RePass, -- Jan 4 2011

For the first thirteen decades of its existence, the Senate allowed unlimited debate. This meant that a single senator, or just a few, could hold up passage of legislation by talking interminably (filibustering). This tactic was rarely used at first, but over the years it began to be employed often enough that in 1917 the Senate adopted a Cloture Rule; debate could be ended by a two-thirds vote. The two-thirds was later changed three-fifths.

In recent years, cloture has been turned upside down. Now all the minority needs to do to prevent a bill from even reaching the floor is simply to threaten to filibuster. Debate never begins. Real filibusters almost never take place. This is called a "silent" filibuster -- an oxymoron if there ever was one.

The demise of majority rule in the Senate is a violation of the Founding Fathers' clear wishes and intent.

When it came to procedures, they believed that simple majorities, not supermajorities, should be the rule. This is demonstrated in Article 1, Section 5, of the Constitution which says that "a majority of each House shall constitute a quorum to do business."

Furthermore, the Founding Fathers required supermajorities in only five very special circumstances -- another clear indication that they assumed majority rule would be the norm. Two-thirds majorities were prescribed only to override vetoes, ratify treaties, expel members of Congress, propose amendments to the Constitution and to convict in impeachment cases.

Despite, the Founder's written intentions; despite their clear language in Article 1, Section 5; Senate rule-makers have once again seen fit to grant the Minority Party the agenda-setting power -- to Block proposed Bills from ever coming to a Vote, whenever they choose. For whatever unstated reason, whatsoever.

I would argue, this invention known as the Silent Filibuster, is an extra-constitutional concept -- something that grew haphazardly, perhaps from the idea that the Senate should be the place that serves as "the saucer that cools the tea." A place where "calmer minds prevail."

Whatever that means. A place where ALL opinions matter, I suppose. Well doesn't that imply that actually Voting on bills, should matter too?  Voted on, after ALL opinions have been heard and considered?

In that sober light, the Silent Filibuster -- this counter-initutive "Senate rule" of requiring a Super-majority agreement, in order to take a Simple-majority Vote -- surely appears to be reaching a bit beyond the simple intent of Constitution.  Especially considering, the Founders' clear preference for simple Majority rule:  "a majority of each House shall ... do business."  

(The 5 exceptions to this, those requiring a Super-Majority, were clearly stated in the Constitution. Guess what, the Filibuster wasn't listed. The Filibuster didn't even exist, back then, at the founding of this great experiment in democracy. No, the filibuster is a modern-age invention.)

At minimum, when seen in its best light, this collegial senate rule the Silent Filibuster, is designed to "let all views be heard and considered" -- but in reality, it actually doesn't do that. This contradiction in results, at minimum violates common sense.  It's resulting "shut-down of any further debate," clearly goes against the tradition of the Founding Fathers, who believed in Debates without end, and Deliberation into the wee hours, and sometimes for days on end, and THEN finally after all that -- then actually taking the damn Vote!

Otherwise, without ever voting, What's the damn point?  They might as well just have "some tea" and trade some war-stories, for all the good they do.  Or don't do, as now is, far too often the case.  

The Floor is now closed. Enjoy the peace and quiet, America. Your Business now requires a Super-Majority, to even be considered, possibly-maybe actionable ... Minority party willing, simply as a matter of course.

Originally posted to Digging up those Facts ... for over 8 years. on Sun Jan 27, 2013 at 01:57 PM PST.

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Comment Preferences

  •  tyrrany of the majority (2+ / 0-)
    Recommended by:
    jamess, VClib

    it's why we're a republic and a representative democracy, not a direct democracy.  it's why the senate exists.

    Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

    by Cedwyn on Sun Jan 27, 2013 at 09:09:56 AM PST

    •  was that (2+ / 0-)
      Recommended by:
      mrbond, wilderness voice

      "tyranny of the majority"

      in the Constitution?

      Was the Filibuster?

      What about the "tyranny of the minority"?

      What about "It's my Tea Party way -- or the Highway"

      Here's how the game is really Rigged.

      by jamess on Sun Jan 27, 2013 at 09:13:06 AM PST

      [ Parent ]

      •  tyranny of the majority just is (1+ / 0-)
        Recommended by:

        it happens.  and it's a huge part of why our government was structured the way it was.

        case in point:  civil rights

        Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

        by Cedwyn on Sun Jan 27, 2013 at 09:21:55 AM PST

        [ Parent ]

        •  Majorities CAN (2+ / 0-)
          Recommended by:
          wilderness voice, Eric Nelson

          run roughshod.

          Majorities CAN be wrong. Very very Wrong.

          As our history plainly and painfully shows, time and time again.

          But what about those cases when the "wrong shoe" is on the other foot.

          What about those, far more common instances, where the Minority Party is Wrong?

          Yet whatever they say goes.  Kind of like the Gridlock we have now.

          When the Minority Party starts slashing our earned benefits -- they will be expressing their own unique brand of tyranny

          -- and they will be get away with it, subverting the Majority will, to their own.

          Here's how the game is really Rigged.

          by jamess on Sun Jan 27, 2013 at 09:29:48 AM PST

          [ Parent ]

    •  Yes, but when plutocrats and moneyed (3+ / 0-)
      Recommended by:
      jamess, penguins4peace, Gooserock

      interests, and the "cocktail party circuit" take over,  this "representative democracy" is only representative of them, and not of us.

      "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

      by zenbassoon on Sun Jan 27, 2013 at 09:22:39 AM PST

      [ Parent ]

      •  Our System Is a Sitting Duck Against Those Forces. (3+ / 0-)
        Recommended by:
        jamess, zenbassoon, psnyder

        The framers lived at least a century after Europe had demonstrated threats of financial speculation, and various problems with commerce concentrating wealth. But when they finished writing their system was perfectly ignorant of those threats.

        Seems most people agree it's also wide open to the Electoral College gerrymander too, in which case we have a permanent ruling Republican minority till long after they've repealed the New Deal.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Sun Jan 27, 2013 at 02:08:47 PM PST

        [ Parent ]

      •  you wonder (2+ / 0-)
        Recommended by:
        zenbassoon, Eric Nelson

        How much does it cost the Koch Brothers,

        to buy a single Tea Party Objection?

        Probably is a grand bargain for them.

        Here's how the game is really Rigged.

        by jamess on Sun Jan 27, 2013 at 02:17:50 PM PST

        [ Parent ]

    •  Yes, you are right. But also you are wrong. (5+ / 0-)

      You are right that our system was designed such that direct  majorities don't prevail necessarily. And the Senate was part of that safeguard.

      BUT, the safeguard of the Senate was the design of its composition, not in the "principle of unlimited debate" or whatever other nonsense.

      The Senate is undemocratic in its representation, as small population states like Alaska have equal representation as states like California and New York. That was the "Great Compromise" of the Constitution.  That would assure that there would be a check on the majority opinion of Americans (mostly in very big cities of the east coast) couldn't run roughshod over the country.

      There is nothing sacred about the filibuster. As jamess said, it's a perversion of Senate rules (which in themselves are not sacred either). It's an accident of history, nothing more. In fact, when the Senate first came into existence, there was a Senate rule called "moving the previous question" which ended debate and forced a vote on a bill with a simple majority vote! The rule was removed in the early 1800's because at the time the Senators considered the rule redundant and unnecessary (yeah, that turned out well.)

      •  don't know where you're getting half of that (1+ / 0-)
        Recommended by:

        this was all i said:

        tyrrany of the majority

        it's why we're a republic and a representative democracy, not a direct democracy.  it's why the senate exists.

        i took no stance defending the filibuster; i made no claims as to the exact mechanisms of the senate acting as a safeguard.  

        and senator levin disagrees with you:

        Some supporters of the nuclear option say that the Founders never intended for the Senate to have filibusters.  They claim that the original Senate’s rules included a motion for the previous question, which they further claim was used to end debate and bring a matter to an immediate vote.  So, they argue, the early Senate supported the ability to close debate and bring a matter to immediate vote by simple majority vote.

        The problem is that they have their history wrong.

        Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

        by Cedwyn on Mon Jan 28, 2013 at 07:11:29 AM PST

        [ Parent ]

  •  History is a long and winding trail ... (1+ / 0-)
    Recommended by:
    Eric Nelson

    History of the Word Filibuster

    from NPR, All Things Considered, Listen  --  May 18, 2005

    The word 'filibuster' comes from piracy.

    Aye!  Nay!  ... Aaah,  Nevermind!

    Give it up, Matey's ...  We object.

    Aye!  The word 'filibuster' comes from the word piracy ...

    A Brief History of Filibusters
    by jamess --Jan 26, 2013

    Here's how the game is really Rigged.

    by jamess on Sun Jan 27, 2013 at 02:13:50 PM PST

  •  The silent filibuster is to insure that the 100 (2+ / 0-)
    Recommended by:
    jamess, Eric Nelson

    senators control the senate and the hell with the rest of us.  This needs to change or we will just have more of the same grid lock, this time the GOP likes the filibuster, next time the Dems may like it, it needs to end so legislation can proceed with up or down votes.  Harry Reid could have made a real change in the filibuster and elected to take a baby step with reform which will do nothing to get these lazy rich people to do their job.  Let's hope he gets to something 'cause it looks like more of the same tos me.  There is too much secrecy in a powerful body of only 100 poeple.  Let's get some light on them and the truth may make us free after it gives us alot of heart burn.

  •  Article I, Section 5: (1+ / 0-)
    Recommended by:
    Each House may determine the Rules of its Proceedings

    "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

    by JamesGG on Sun Jan 27, 2013 at 02:34:28 PM PST

  •  There might be a lot of reasons (2+ / 0-)
    Recommended by:
    carver, VClib

    to be upset about the Senate or the filibuster or majority rule or minority obstruction, but invoking the Constitution comes up pretty short.

    There is very, very little in the Constitution that specifies how the various institutions that make up our government are supposed to function.

    Your point is that there is nothing in the Constitution allowing a filibuster.

    True, but there is nothing in the Constitution that allows medical procedures like abortions. Are you in favor of banning abortions because they are not "allowed" by the Constitution?

    The fact of the matter is that Congress, both houses, have virtually no rules or even suggestions specified in the Constitution. They make up their own rules.

    And the Judicial Branch was barely mentioned in the Constitution. The Judicial Branch made up EVERYTHING about their job, every single aspect.

    The Constitution is akin to an architect's sketch of a project: it lays out the general appearance and that is about it. The Constitution doesn't specify the size of the rooms or what colors the wall is painted or what kind of furniture is to be used.

    And before you start assuming what the founding fathers wanted, you should probably brush up on your history. The "founding fathers" of the Constitution did not have anything like our modern government in mind when they signed the document. The Senate was not even an "elected" body unless you consider the richest people in any particular state getting together over brandy and making a decision to be an "election".

    As a matter of fact, the founding fathers, as your quote from Mr. RePass indicates, considered a filibuster to be perfectly acceptable. The Senate didn't even keep minutes of its meetings until well into the 19th century. If they weren't keeping minutes and records, do you really think they were at all concerned about transparency and effecting the will of the people????

    Mr. RePass and you can speculate all you want about what the founding fathers did or did not intend, but the fact of the matter is that the "founding fathers" were among the first Senators, they wrote the Constitution, and they allowed the unlimited filibuster to become a normal part of Senatorial proceedings. There has never been a Constitutional Amendment to change or even specify how the Senate operates, just a rule that was passed long after the founding fathers were dead.

    And the Senate is free to interpret its own rules and to abide by them or not abide by them.

    It is up to them, nobody else. Even the electorate cannot specify the rules of the Senate, only who is put into office.

    Face it, the Senate is free to operate in any manner it chooses. The Constitution does not specify the matter. Trying to use other portions of the Constitution to bolster your position as to what the founding fathers "meant to say" about the Senate rules is hollow, at best.

    There are only two types of Republicans: 1) racists; and 2) people who are willing to be associated with racists.

    by hillbrook green on Sun Jan 27, 2013 at 02:47:23 PM PST

  •  Thank Aaron Burr (3+ / 0-)
    Recommended by:
    jamess, wilderness voice, Eric Nelson

    An story on WGBH radio today told about the origin of the filibuster.  It occurs because Aaron Burr, third vice president, gave a speech to the Senate after being indicted for killing Alexander Hamilton.  Burr complained that the Senate's rule book was a mess, so it needed cleaning up.  And the "previous question rule" was unnecessary.

    That rule was one that allowed a vote to be called.  In 1805, it was never invoked -- Senators always allowed votes.  Over three decades later, somebody in the Senate figured out that there was nothing to force a vote if Senators wanted to keep the debate going. Burr didn't mean to create the filibuster; he just made it possible.  Now, the silent filibuster happens because doing pretty much anything requires a unanimous consent motion, and it takes cloture (60 votes) to override a single objection.

  •  The filibuster was an accident according to.. (1+ / 0-)
    Recommended by:

    ..political scientist Sarah Binder
    Ezra Klein asked her how it was invented

    And to follow up on the "previous question rule" Kossack K S LaVida has posted:

    "We all know the Constitution says the House and Senate can make their own rules," explains Binder. "So in 1789, each chamber draws up their own set of rules. And both sets of rules have a previous question motion, which is the motion that the House uses to cut off debate by majority vote."
     - emphasis added
    Notice it is a majority vote to cut off debate
    "In 1805, Aaron Burr has just killed Alexander Hamilton. He comes back to the Senate and gives his farewell address. Burr basically says that you are a great body. You are conscientious and wise, you do not give in to the whims of passion. But your rules are a mess. And he goes through the rulebook pointing out duplicates and things that are unclear."

    "Among his suggestions was to drop the previous question motion. And they pretty much just take Burr's advice. And once it's gone, it takes some time for leaders to realize that they can't cut off debate anymore. But the striking part to me was that we say the Senate developed the filibuster to protect minorities and the right to debate. That's hogwash! It's a mistake. Believe me, I would've loved to find the smoking gun where the Senate decides to create a deliberative body. But it takes years before anyone figures out that the filibuster has just been created."

    And once they do figure it out, of course, they could never rid themselves of it because the minority never had an interest in letting go of their advantage. Binder's history doesn't have much bearing on whether the filibuster is a good thing or a bad thing. Plenty of accidents are happy accidents. But it should put to rest the idea that the filibuster somehow represents the will of the Founders, or it was adopted as part of a conscious effort to protect minority rights. The filibuster was an accident. It has been reformed a number of times (notably in 1917, when cloture was set at 67 votes, and in 1975, when cloture was lowered to 60 votes). It can be kept in its current state, strengthened, weakened or abolished. There is nothing sacred about it.

    By Ezra Klein  |  March 8, 2010; 5:52 PM ET
     - emphasis added

    So it sounds like there was no thought out concept of the filibuster within the constitution.

    Thx Jamess

    •  Also from Sarah Binder is this interesting.. (1+ / 0-)
      Recommended by:

      ..question and answer session: The History of the Filibuster

      Editor's Note: In testimony before the U.S. Senate Committee on Rules and Administration, Sarah Binder counters a number of conventionally held notions about the origins and history of the Senate filibuster. Binder notes that the filibuster was not part of the original design of the Senate and the creation of the cloture rule was not a statement of the Senate’s love for supermajority rules, but rather the product of hard-nose bargaining with an obstructive minority.

  •  Yes, but (0+ / 0-)

    Some day the Democrats will again be the minority party, and they'll need the protection of the filibuster.  

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