Fighting the filibuster

December 3, 2012

President Barack Obama recently said Congress should “seize the moment” and summon a majority to push immigration reform. There is only one problem – Congress already did that.

Majorities in the House and Senate backed the DREAM Act, a bill creating a path to citizenship for young illegal immigrants brought to the United States as children, during Obama’s first term. The bill died, however, when a minority of Republicans filibustered it. So even if a new immigration majority materializes next year, Republicans can just filibuster again. Unless Erika Andiola gets her way.

The U.S. District Court for the District of Columbia is due to hear arguments  Dec. 10 in Andiola’s case – an ambitious and erudite lawsuit from Common Cause – which argues that a small band of senators have turned the filibuster into an unconstitutional assault on our democratic government.

Andiola is not a U.S. citizen, so you might wonder how she ended up in the middle of this debate. She moved with her parents from Mexico to Arizona at age 11. She was a quick learner, mastering English, graduating in the top five of her class and earning an academic scholarship to Arizona State University.

Andiola was stripped of the scholarship, however, after Arizona passed a law barring undocumented students from receiving educational benefits. Now she is one of the lead plaintiffs in Common Cause v. Biden, the legal element of an escalating campaign to combat filibuster abuse in the Senate.

Andiola’s lawyers have a novel argument: She can sue the Senate because the filibuster thwarted legislation that would have protected her education.

Back on Capitol Hill, Democrats are also considering reforming the filibuster in January, once the new Senate is sworn in. Majority Leader Harry Reid (D-Nev.) says the Senate can alter its rules with a bare majority on the first day of the session. (It would require a supermajority during the rest of the year.)

Other senators – mostly Republicans, but also some Democrats – say that no matter what day it is, the rules should be changed only with a supermajority. If Reid presses on, there will be a lot more debate about that arcane parliamentary question. The answer could determine the fate of Obama’s legislative agenda. And it’s a central issue in the filibuster lawsuit.

In the briefs for the case, Common Cause documents a radical shift familiar to C-SPAN junkies across the nation: The filibuster went from a rare procedure in the Senate to standard operating procedure. The Senate used to average about two filibusters per year, notes the brief, but that number skyrocketed to 137 for Obama’s first year in office.

Even if you are not a parliamentary junkie and expert on cloture, you have probably still heard the media echo of this trend. Any time a reporter says you “need 60 votes” to pass a bill in the Senate, he is referring to Republican filibuster threats ‑ which require 60 votes to overcome.

Over the past 20 years, and particularly the last four, something radical happened in our democracy. The filibuster has gradually transformed the legislative branch of government from a majoritarian democracy into a body frozen by a “minoritarian” veto.

People can debate whether that makes for good or bad policy. Many conservatives, for example, like the gridlock because they want Congress to pass fewer laws and spend less money. The only question for the courts is whether this unusual dysfunction is constitutional.

The lawyers for Andiola and Common Cause say it’s not. They argue that a supermajority cannot be required for routine votes – let alone for a newly elected Senate to set its own rules. After running through a series of precedents, the suit mirrors Reid’s view that it would be unconstitutional to bar the Senate “from amending its rules by majority vote.”

This makes intuitive sense. Why should new senators, arriving in Washington with a new mandate from voters, be bound by rules set by senators from decades ago?

Bob Edgar, a former Democratic congressman who runs Common Cause, says the federal courts have a duty to intervene when the Senate violates the Constitution. The founding fathers were “fearful of supermajority votes,” Edgar told me, “and believed that democracy should be based on majority rule.”

Edgar cited the six specific parts of the Constitution that do require legislative supermajorities, including international treaties and overriding a presidential veto. In all other cases, he said, the Federalist Papers reflect a commitment to majority rule.

“The filibuster was invented by Aaron Burr by accident, 20 years after the Constitution,” Edgar said. “And up until 1970 it was used more often to protect slavery and lynching laws [than any other policies].”

Even given a compelling historical argument against the filibuster, however, the federal courts try to avoid refereeing political disputes in Congress. There is a whole body of law, called “the political question doctrine,” devoted to the idea that the courts should duck politics.

And a partisan, post-election debate over how the Senate organizes itself could look like a classic political squabble.

On the other hand, political heat is not supposed to prevent courts from defending the Constitution – even if it means challenging congressional prerogatives.

Here’s an unambiguous hypothetical: If the Senate refused to count a new member’s votes because she was a woman, courts would surely address such a blatant violation of equal protection under the 14th Amendment.

The example may sound far-fetched for 2012, but the filibuster suit argues that the Senate is in equally unlawful territory by refusing to count the votes of the majority.

Common Cause also points to big, partisan skirmishes where the Supreme Court has intervened, such as when the House of Representatives ejected New York Representative Adam Clayton Powell Jr. in 1967 or when Congress tried to alter veto powers under the Constitution. In one unanimous opinion, the Court concluded that while “each house” of Congress does get to make its own rules, it “may not by its rules ignore constitutional restraints or violate fundamental rights.”

What could be more fundamental, after all, than ensuring that the voters’ chosen representatives can govern democratically?

PHOTO: The U.S. Capitol building in Washington. REUTERS/Jim Bourg


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Pretty intriguing. If Harry Reid is right, the Senate’s rules could change every two years. The first order of business in each new senate would be to adopt the rules for the term.

Well, why not?

Posted by maximillianwyse | Report as abusive

Did the writer forget that we are a Republic, not a Democracy? Did they also forget that the founding fathers wanted a system that would protect the significant minority from what called “mob rule?” Or was this piece intended to be an opinion piece? “Democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%.” In the case of the last Presidential election, the 51% of the people may take away the rights of the other 47%.

Posted by Cristofer | Report as abusive

> “Over the past 20 years, and particularly the last four, something radical happened in our democracy. The filibuster has gradually transformed the legislative branch of government from a majoritarian democracy into a body frozen by a “minoritarian” veto.”

Fall of the Soviet Union brought about a world with only one traditional “superpower”. Or at least, gave Americans the perception that they had lost their traditional common enemy — who had previously helped secure about political unity in the USA (you knew you had to do pragmatic deals just to retain your basic freedom). So now this basic principle has receded into the background, your politicians think they can play partisan political games and nothing bad will happen to the USA as a result…

It’s a dangerous game.

Posted by matthewslyman | Report as abusive

@Cristofer. This is an opinion piece. If you look at the top, above the title of the article it reads, “Opinion”.

Posted by JL4 | Report as abusive

Well, for most of America’s history, racial minorities have not been well protected and were both tyranized and terrorized. Thankfully, both Congress and much later, the courts, granted equal rights to all citizens. The recent abuse of the filibuster has been perpetuated by a political minority in the Senate intent on obstructing government and holding Congress hostage to their minority agenda which tends towards corporate fascism due to financial backing by corporate and special interests, at the expense of the general public. I consider that to be a form of tyranny and look forward to this miscarriage of democracy to be brought to a swift end.

Posted by Greenspan2 | Report as abusive

I sincerely hope they find Reid personally liable and fine the CRAP out of him ($100 mil sounds like a good starting point).

Posted by Fixerguy | Report as abusive

Seems unlikely in this case the Court will overrule the Senate. But the Senate should vote on its rules on January 3. To not do so only allows the majority members to whine when a vital post in unfilled or a great piece of legislation is blocked by a minority. To the commenter who considers the filibuster the only protection of the minority, think again. The Constitution, including its amendments, protect the minority.
And, by the way, there is a serious argument about your point: “(It would require a supermajority during the rest of the year.)” Constitutional scholars doubt even this. Certainly non-scholars, such as Trent Lott, Bill Frist, and Dick Cheney did.
“Other senators – mostly Republicans, but also some Democrats – say that no matter what day it is, the rules should be changed only with a supermajority.” True. They do say “should.” Not “cannot.”
Email your Senators to support Senator Tom Udall in his efforts to get the Senate to do its duty to adopt rules on January 3, rather than default to rules 98 of them have never voted on. Otherwise they will continue to whine and blame the filibuster for their failures, as if they had no control over its adoption.

Posted by RTKMD | Report as abusive

Many of the older politicians, mostly republican, are trying to hold onto their way of government and the “way things should be”. The filibuster was part of that past. It was a useful and important tool for a long time. Unfortunately like many other things from the 20th century, it no longer works in this new 21st century global world. The country changed, literally. The demographics of the US are significantly different now than in say 1955. The US government is changing too. It feels like agonizingly slow changes, but from a historians point of view, it is changing abnormally fast.

Posted by tmc | Report as abusive

I believe that Reid’s proposals are far less radical than is presented here. I believe that the proposed changes would bar filibuster of the debate, but you could still filibuster the vote. It would also block filibuster of appointments of all but a set of specified offices. Overall, it is a tweak of the existing system, which was not that problematic until the Republicans decided to abuse it during the Obama administration.

The filibuster is particularly insidious in the Senate, since representation there is not proportional. As state populations have diverged, the power of a minority has grown to levels that in my view are dangerous, and certainly anti-democratic. The last number I heard (from several years back) is that Senators representing just 11% of the US population could filibuster anything. OTOH, without the filibuster, Senators representing a large majority of citizens can be overruled by those representing the small states. The crux of this issue is the non-proportional representation, and a constitutional convention is likely needed to address that one.

As for the tyranny of the majority, that is what the Bill of Rights and our courts are for. The examples of times when minority rights have been trampled on is when the courts, not the legislature, have failed in their duty.

Posted by Sanity-Monger | Report as abusive

This was a very interesting article.

Go Reid !
I believe that the rules should be changed to stop dis-functioning government, and allow the filibuster only for the original reasons, “including international treaties and overriding a presidential veto”. Otherwise we find ourselves in the current situation.

The other problem we face is when a political minority, like the one in the House, can block an “Up or Down” vote from coming to the floor. The executive should have the power to request an up or down vote in one House if the issue has been passed by the other House of Congress.

Posted by Evelio | Report as abusive

Maybe we should have the electoral college pick our senators too?

Posted by tmc | Report as abusive

Great job by Ari to put a face on what the filibuster does to our government and us as citizens. We need more coverage like this on how we pay the price for posturing and grand standing by elected officials. When you put a human face on the laws, it puts many things into perspective.

Posted by monicaisliberal | Report as abusive

@Cristofer: What on earth does the fact that we’re a Republic have to do with the question at hand? And you do understand that the filibuster wasn’t written into our Constitution but rather developed later, right? Also, do you take issue with any law that passes with a bare majority, even those you agree with, or only with those with which you disagree? Specious arguments at best, and hardly representative of historical or constitutional scholarship.

@Fixerguy: Harry Reid should be found “personally liable” for what, exactly? When’s the last time you heard of a Senator being sued for bringing an issue to the floor or, as Majority Leader, asking for a vote on a Senate rule change? Right–that’s not how Congress or our democracy work. Maybe educate yourself before you blather silly things in public.

Posted by segmentis | Report as abusive

Those unfamiliar with what is actually being debated here might consider reading the complaint (PDF): c17e2-cdd1-4df6-92be-bd4429893665%7D/FIL ED%20COMPLAINT.PDF

Posted by segmentis | Report as abusive