The filibuster is unconstitutional in its current form because it requires a larger majority to “call the question” than is required to “call the Senate to order.” Yesterday, a minority of Senators used the filibuster to avoid a vote on increasing background checks for gun purchases. This is not the democracy our forefathers had in mind when they wrote the Constitution.
Blog Post from 28 January, 2013
In light of the Senate’s so-called “filibuster reform”, repeating my blog post from December 27th seems appropriate. They call it reform, but it only addresses half of the problem and, I would argue that it only addresses the less problematic half. Under the so-called reforms the Senate will find themselves with a floor debate in progress and no way to control the debate.
Our Senators are not being honest with us as they kick the can one more time. The truth is they know what they are doing doesn’t change anything in any significant way and that is their plan because they all want to be able to use the filibuster when they are in the minority.
Blog Post from 27 December, 2012:
Recently, as I researched and wrote my book, A Broken Sausage Grinder; Is Our Government Fundamentally Flawed?, I discovered what I believe is an unconstitutional provision in the Standing Rules of the Senate.
Specifically, the United States Constitution, Article I, Section 5, para. (1) states: “Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.”
As I understand it, doing legislative business involves making motions, debating those motions, amending motions, and voting on the motion under consideration. The Standing Rules of the Senate, Article XXII, Section 2, second para. States: ““Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.” This is the “Cloture” provision and I believe it is a motion like any other which may become appropriate during the conduct of debate as part of doing business in the Senate. The “Cloture” motion requires a 3/5ths majority of all Senators duly chosen and sworn for passage which constitutes a higher threshold for passage than the simple majority required for the conduct of business in the first place and I am asserting that this higher threshold is, therefore, unconstitutional.
It is interesting to me that when the business before the Senate involves an amendment to the Senate Rules, the threshold for passage is 2/3rds of the Senators present and voting which could easily be fewer than 3/5ths of the Senators duly chosen and sworn.
The behavior we all know as the Filibuster is made possible because the Standing Rules of the Senate do not limit the time a speaker has to make a point once he or she has been recognized by the chair and the only way to bring the debate to a vote is via “Cloture” which was discussed
above. It follows then that the Filibuster may well be unconstitutional.
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