Saturday, January 23, 2010

#199 Bring On the Filibuster II

During the Bush/Cheney hey-days, the freebooters menaced from the other side of the Senate aisle. Whenever the minority Democrats would threaten to hi-jack a bill or a Presidential appointment with the scarifying filibuster, the Republicans would threaten right back with what they dubbed the "nuclear option." It's surely a well-known secret across both aisles that the Cloture Rule can be changed or chucked-out altogether--not by 67 votes, nor, for that matter, 60, but by 51 ... a simple majority of the U.S. Senate. Constitutionally.

Now, the Founding Fathers, in their wisdom, were no great fans of Athenian democracy, or of the popular vote per se, for that matter. It couldn't elect President Gore ten years ago, for instance, thanks to the Electoral College and those wily Framers of the U.S. Constitution in Philadelphia long ago. Moreover, no vote in Congress is cast directly by the People. Of course not, say you: we're a representative democracy. However ... Yes, today both houses are popularly elected, and presumably represent the Will of their constituents, but for most of it's history, the Senate was immune to the popular vote. The Framers really did, bless their 18C hearts, have the British House of Lords in mind--and way back in their minds the life-tenured Roman Senatus of literally "old men" (senex)--when they "constituted" our bicameral legislature's "upper" chamber. As, frankly, another check-within-a-check-and-balance to the not-even-quite-direct voice of the people in the House of Representatives. Senators would be APPOINTED ... by higher powers-that-be in the several states. Most often this was accomplished by state legislatures, up until as late as 1913, when the 17th Amendment mandated popular election for all Senators.

But ... once the vox populi made its sometimes tortuously indirect way to the floors of Congress, the Framers expected it to be acted upon expeditiously, in a timely, and that means majoritarian, manner, as for any other deliberative body. Getting the people's franchise there was tough enough. According to Article I, Section 5, Clause 2: all that's required to to do business is a quorum, 50%+1. Then, a voting majority rules. The only exception in Clause 2--thus "proving" the rule--is the business of expelling a member of either house, which requires two-thirds of those present. QED: the Senate was Constitutionally OKAY in passing by a simple majority its Cloture Rule requiring 60 votes to stop a filibuster, but NOT OKAY in making a rule requiring 67 votes to change the rules. And, speaking of checks and balances, this point of Constitutional law was brought to a test many years ago and affirmed by the Supreme Court:
The constitution provides that "a MAJORITY of each house shall constitute a quorum to do business." In other words, when a MAJORITY are present the house is in a position to do business. Its capacity to transact business is then established, created by the mere presence of a MAJORITY, and does not depend upon the disposition or assent or action of any SINGLE member or FRACTION of the MAJORITY present. (U.S. v. Ballin 1892)
So there it is. The majority Democrats in the Senate can exercise their own "nuclear option" at any time, and throw out the Cloture Rule. Pass whatever @#$ *&%@ Health-Care Reform bill they want, without fear of Captain Filibuster. Will they do it? Doubtful. News reports have it that they're already wimping-out. No, not about the constitutional tactic above--they're way too gutless for that--but rather now they are scheming to somehow get around the filibuster procedurally ... or give up altogether and start over. Bruxism time.

Okay. I say just bring on the filibuster and be done with it. Let the new Republican Senator from Massachusetts gloat on his vote. That would be the magical Vote #41 against closing off debate. Here's how it could play out. Act one: Obama summons the fortitude to stop the House-Senate negotiations on their separate health-care bills. Act two: House submits intact its less-than-perfect-but-with-Public-Option bill to the Senate. Act three: Majority Leader Harry Reid introduces House bill for floor-debate, and then does what he seems to do best: nothing. Act four: hilarity ensues. Good fun is had by all as Republicans and and one or two Blue Dog henchmen extend debate indefinitely, fighting off Cloture votes one-after-the-other, flogging their long-dead hobby-horses unmercifully, exposing themselves as the mottled fools they are in front of the C-Span cameras hour-after-hour. Act five: patience finally exhausted, an angry mob in pirate garb storms the Senate chamber with sword and pistol drawn. Much loss of life ensues.

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