25. May 2005 · Comments Off on The Birth Of The Filibuster · Categories: Politics

The Dems would have us believe that the filibuster has been with us from the birth of the republic. But Brookings has this article from the Atlanta Journal-Constitution from a year ago:

Right to extended debate

The Constitution allows the Senate to establish supermajority requirements. Article 1, section 5, provides that “each House may determine the rules of its proceedings.” Such requirements may be troublesome for the Republican majority, but the Senate clearly has the constitutional authority to create and enforce supermajority rules.

Still, this does not mean no reform is permissible. The right to extended debate was not created until 1806, when the Senate cleaned up its rulebook and dispensed—probably by mistake—with the rule that allowed a majority to limit the debate. Filibusters did not begin in earnest until the newly formed Democratic and Whig parties formed several decades later.

Filibusters against nominees are constitutional. Some Republican senators have claimed that filibusters of nominees are unconstitutional because they prevent the Senate from fulfilling its obligations to advise and consent. In fact, and quite remarkably, the Constitution does not specify that a majority of any sort is required for confirmation, or even for passing laws. The Framers most likely had such a requirement in mind, but the Constitution does not address it. No reading of the Constitution can support the idea that filibusters are unconstitutional.

There is precedent for banning the filibuster. Periodically, the Senate has chosen to impose debate limits on important bills. “Fast track” for trade bills ban the filibuster and a wide range of laws (from arms export control laws to marine sanctuary protections) limit debate. In proposing a ban on filibustering judicial nominees, Frist may simply have found another special purpose for limiting debate.

Further, while he Jackasses are baying loud and long about how a change in the cloture rule is unprecedented, that is far from true as well:

Cloture has not always been like this. When rule twenty-two was adopted in 1917, it took 2/3 of the Senate who was present to vote for cloture providing there was a quorum. In 1949, rule 22 was amended to state that 2/3 of the entire senate, or 67 members were required to vote to end debate. In 1959, rule 22 was amended again lowering the required number of senators to 2/3 of those who were present and voting. In 1975, cloture was lowered to 3/5 of membership or 60 members to vote for it. Since the drop in the number of members needed to invoke cloture, cloture votes were twice as successful then in the period from 1959.

The other major reform that took place in cloture was the time allotted to debate after cloture was invoked. Originally rule 22 never specified the amount of time that was permitted for debate after cloture was invoked, senators began to exploit the rule in the late 1970s. They started what became known as the post-cloture filibuster, where after debate had been supposedly ended, they would continue to tie up the floor with more debate, amendments, and points of order. For example, Senator X would have control over the floor and ask for every amendment to be read, despite relevance or necessity. This post-cloture filibuster would eat up a large amount of time.

Thus, in 1979, the Senate amended rule 22 to state that post-cloture debate would be limited to one hundred hours or one hour per Senator. The only problem with this reform was that the one hundred hours did not include points of order or readings of amendments, so the post-cloture filibuster still worked in delaying the passage of a bill. Again in 1986, the senate voted to amend rule 22 to limit post-cloture debate to 30 hours including all points of order. This recent amendment has pretty much eliminated the post-cloture filibuster.

Another somewhat less looked at cloture reform is that of dealing with procedural motions and rules. In 1948, the chair decided that cloture cannot be applied to procedural motions applying to pending legislation. One year later, the senate voted to overturn that decision, saying that cloture could be applied to procedural motions except those motions to change the standing rules of the senate. One decade later in 1959, the senate again changed rule 22 to say that cloture may be invoked in motions considering changes in senate rules. In 1975, along with the lowering of cloture votes to 3/5, the senate mandated that 2/3 of senators present and voting must vote cloture on senate rules. This is the ruling that remains today.

So why is rule 22 cloture reform so important to the passing of legislation? It is pretty simple. It is almost impossible for a majority in the senate to have 3/5 or 60 votes. So in order to pass a partisan bill, one party must get a number of votes from their opponents in order to shut off the minorities ability to filibuster. There have been talks about lowering the amount of votes needed to invoke cloture but due to the fact that you need a 2/3 vote to change senate rules, it is unlikely that the minority will want to give up their ability to block unfavorable legislation.

Finally, I find it almost laughable that, after all the vitriol and hyperbole over Owen for the past four years, when it finally came down to a vote to end debate, it passed by an overwhelming 81-18.

Hat Tip: Todd Zywicki at Volokh

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