The Senate procedure, which requires 60 votes to halt, has become the minority party's weapon of choice. But a watchdog group contends the Founding Fathers opposed such a tactic in most cases and has filed suit to stop it.
One peer-review publication has called Emmet Bondurant “the go-to lawyer when a business person just can’t afford to lose a lawsuit.”
The Atlanta man now is aiming at something much larger. He contends the filibuster, increasingly used by Republicans since Democrats regained control of the Senate in 2007, is unconstitutional. And he and Common Cause, a government watchdog group where he serves on the board of directors, have filed a federal lawsuit in an attempt to persuade the Supreme Court to abolish the procedure.
The lawsuit, filed this week in U.S. District Court in Washington, D.C., cites the Senate’s inability to muster 60 votes to clear legislation that would allow children of illegal immigrants to become legal U.S. residents if they go to college or join the U.S. armed forces, and to pass legislation that would require nonprofits that run political ads to disclose donors. Both bills passed the House and received a majority of votes in the Senate.
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“While the Senate can set its own rules, they can’t be unconstitutional,” said Common Cause President Bob Edgar, a former Democratic congressman from Pennsylvania. “This is an unconstitutional provision. A minority of senators representing a minority of the population of the nation can, in fact, rule with the current system.”
Since Democrats regained control of the Senate in 2007, the number of motions to end debate, known as cloture, have more than doubled. The Senate Historical Office says 130 filibusters were used during the 2003-2006 period, when Republicans were in the majority, and 276 between 2007 and 2010. In the current Congress, 84 motions have been filed to date.
“It reflects the breakdown of any sense of collaboration between the Democrats and Republicans,” said Tobe Berkovitz, a Boston University professor of communication. “Whichever party is out of power wields the filibuster like a mace. Whichever party is in power bemoans the degradation of Senate decorum due to the filibuster. This has made the world’s foremost deliberative body increasingly more dysfunctional.”
In a 2011 article in the Harvard Law School’s Journal on Legislation, Bondurant laid out his case for why the filibuster crosses constitutional red lines: Essentially, it was a mistake.
In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, believed to be needlessly complicated and redundant. One change was to delete something called “the previous question” motion. That was the motion senators used to end debate on an issue and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.
Thus, the filibuster was born, allowing any senator the right to speak as long as necessary on any issue. Still, it would be three decades — and five decades after ratification of the Constitution — before the first filibuster was mounted.
Even then, filibusters were rare. Between 1840 and 1900, there were 16 filibusters. In 1917, the Senate, at the urging of President Woodrow Wilson in 1917, adopted the modern-day “cloture” rule, a requirement that two-thirds of the body must agree to end a filibuster.
Even with the new rule, filibusters remained an effective means to block legislation, since a two-thirds vote was difficult to obtain. Filibusters were particularly useful to Southern senators who sought to block civil-rights legislation. The Senate in 1975 lowered the threshold for cloture to three-fifths, or 60 votes.
Today, Majority Leader Harry Reid says, “60 votes are required for just about everything.”
That, Bondurant believes, isn’t what the Founding Fathers intended. The framers debated — and rejected — the requirement of a congressional supermajority to pass legislation.
Alexander Hamilton savaged the idea, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”
James Madison wasn’t much kinder. “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”
In the end, the Constitution proscribed six instances in which Congress could require more than a majority vote: impeaching a president, expelling members, overriding a presidential veto or order, ratifying treaties and amending the Constitution. And, as Bondurant writes, “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
That majority vote also played into another principle: the “finely wrought” compromise over proper representation. At the time of the country’s founding, seven of the 13 states, representing 27 percent of the population, could command a majority in the Senate. Today, with the filibuster, 21 of the 50 states, representing 11 percent of the population, can muster the 41 votes to stop a majority in the Senate.
“The supermajority vote requirement,” Bondurant argues, thus “upsets the Great Compromise’s carefully crafted balance between the large states and the small states.”
While the Constitution also says Congress has the power to “determine the Rules of its Proceedings,” Bondurant notes there’s precedent for the Supreme Court to review congressional rules: In 1892, the justices ruled that while “the Constitution empowers each house to determine its rules of proceedings,” it “may not by its rules ignore constitutional restraints or violate fundamental rights.”
Maybe all this is a moot point. There’s evidence some of the Senate’s most powerful members are preparing to overhaul the filibuster rule. Reid, traditionally a defender of the procedure, took to the Senate floor last week to apologize to all the reformers he had stymied over the years.
“The rest of us were wrong,” he said. “If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused and abused.”
Information from the Senate Web site is included in this report.