Saturday 18 December 2010

The Filibuster in the Senate

The US Constitution requires special majorities for specific matters - perhaps I should make that the Christmas quiz - for what matters does the Constitution require a special majority in the Senate?  - answers to info@washminster.com. Sadly no prize of great financial value - but I'm happy to give an honourable mention to everyone submitting the correct answer.

In recent years the filibuster has been used, or merely threatened on a regular basis. Majority Leader Harry Reid complained only last week that the Republicans had launched 87 filibusters in this Congress (December 15th - Congressional Record p S10261). This has meant that in practice 60 votes are needed to progress ordinary business.Judicial nominations - which do not require a special majority - are in practice unable to proceed unless 3/5th of the Senate vote for cloture. (see Washminster post on cloture)

Senator Hatch in 2005 said "America’s Founders designed the Senate without the ability to filibuster
anything at all. The filibuster became available later but was restricted to the legislative process which we control.

It was not part of the appointment process which the President controls.

Allowing a minority of Senators to capture this body’s role of advice and consent will allow that minority to hijack the President’s power to appoint judges. I admit that we have control of the Executive Calendar, but the President has rights in that calendar, too.

We cannot hijack the President’s power to appoint judges. Doing so distorts the balance the Constitution establishes and mandates. That situation should not stand."

I understand that moves may be afoot to challenge the Senate rules which have given rise to this practical requirement for a 3/5th Supermajority. The issues involved in changing the rules are discussed in A CRS Paper  - "Entrenchment" of Senate Procedure and the "Nuclear Option" for change.

An alternative approach would be to challenge the constitutionality of the rules in court. There are a number of legal issues which would have to be addressed with this approach - but we may well see attempts to bring the matter before the courts - certainly something needs to be done - or the Senate will continue to be described as "broken, dysfunctional, gridlocked" (CQ.com).

More information and other CQ material can be accessed here.

What are your views - do share them on Washminster - either by posting a comment here - or emailing me.