ANS -- On the Filibuster

Here are excerpts from a pair of emails I got. I included their URL
so you can check it out if you want to, but I do not necessarily
endorse them (or un-endorse them either). I just thought the history
on the Filibuster was interesting. If you are in Washington DC this
week, you might want to go to the hearings mentioned below.
--Kim


The People Lobby page on Facebook:
http://www.facebook.com/peoplelobby

Stop The Filibuster action page:
http://www.peaceteam.net/action/pnum1104.php


...

But what's most interesting about today's alert is we have done some
intensive research on how the filibuster came into accidental
existence in the history of the Senate, and can report the all
accurate facts to you now.

Many are under the mistaken belief that our founding fathers intended
for a minority to be able to filibuster anything, some kind of extra
protection for the minority. Nothing could be further from the truth.
The original Senate rules provided for a procedure of "calling the
question" which was a way for a simple majority to call for end of
debate. The Continental Congress had this embodied in Rule 10, which
derived from British parliamentary practice.

It should also be noted that the rights of the minority, with respect
to the less populated states, was already protected by the Great
Compromise of 1787, which provided each state with the same number of
senators, regardless of population.

But in those days, our founding fathers were gentlemen, and would
never have used a procedural rule for brazenly dilatory purposes or
just to obstruct. The rule providing for calling the question was
used so few times in the early days that in 1806 Aaron Burr proposed
just dropping it, and so it was dropped by simple majority vote.

It was not until at least 30 years later in 1837 (some say 1841),
that some perverse senators got the idea that they could exploit the
lack of a rule to allow cutting off debate to literally talk forever,
as a means of holding the Senate hostage to an ultimatum of the
minority. And even at that there were relatively few filibusters.
Only 33 in the 57 years from 1840 to 1917. And that is when the
situation became critical.

There was a filibuster of 23 days against a bill to arm American
merchant ships to be able to protect themselves in the aftermath of
the sinking of the Lusitania by a German U-Boat. And that crisis led
to the enactment of the first cloture rule (unfortunately by way of
supermajority), at best a PARTIAL restoration of what had been lost
by the careless discontinuation of the original "calling the
question" procedure by simple majority vote.

So in fact, and again contrary to much misconception, there has never
been a Senate rule "authorizing" a filibuster. There have only been
repeated attempts to reign in the obstructionist abuse as it became
more and more outrageous and frequent over the years.

We are once again at such a point, where the Republican party has so
little left of gentlemen in them, that they are determined to
filibuster literally everything, a new tyranny of the minority. And
once again the majority in the Senate can in fact act to change the
rules to address this new level of sheer legislative spite, if only
we empower them with the political will of our action page
submissions.

Please stay tuned, because in the next alert we will trace subsequent
filibuster reform efforts in the 20th century, with more valuable
insights into how this all really happened, and exactly what we must
now do to fix our modern broken Congress, which would... bring
tears to the eyes of our founding fathers.
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This is the second installment of our mini-series on how the
filibuster broke our government. Today we focus on why the filibuster
is so contrary to the Constitution. Submissions on the action just
sailed past 17,000. Please spread the word as widely as possible.

Stop The Filibuster action page:
http://www.peaceteam.net/action/pnum1104.php
...
In configuring the institution of the Senate, our Constitution
specifies that a bill that "passes" the Senate (and of course the
House of Representatives as well) is then "presented" to the President
for signature (Article 1, Section 7). That our founding fathers meant
by "passage" a simple majority is not even a debatable point for
multiple reasons.

This is clear, in the first instance, from contemporary usage of the
word "pass", meaning by simple majority, as the general rule of all
other parliamentary bodies, and in dictionary definitions, at the
time.

Second, at the birth of the Constitution this was expressly debated,
and the idea of a requiring a supermajority to conduct ordinary
congressional business was rejected. For example, George Mason of
Virginia and others objected to the provision of "a simple majority
of a quorum of the House or Senate to pass legislation that would
bind the entire country." Both but Alexander Hamilton and James
Madison responded to these objections in The Federalist No. 22
(Hamilton), No. 58 (Madison) and No. 75 (Hamilton), by arguing that
this would subject the general business of government to a "junta" of
the minority, and their views prevailed.

Third, the Constitution does specify a number of exceptions for the
most severe matters, for example, impeachment in the Senate, the
override of presidential vetos, etc., that would require some kind of
supermajority. By itemizing these exceptions, this reinforces the
argument that only a simple majority should be required in cases not
so specified.

Fourth, there is a provision for the Vice-President to cast a vote to
break any tie vote in the Senate (Constitution, Article 1, Section
3). This could only have meaning if votes were to be taken by simple
majority, for otherwise there could be no tie.

This same section of the Constitution also provides that each Senator
should have one vote. But under the current tyranny of the minority
imposed by the Republican party, where EVERY point not unilaterally
surrendered to them is filibustered, there can be no vote at all
without at least 60 votes (out of 100) to permit consideration. This
means that each affirmative vote has been reduced in practice to
83.3% of a vote. It's as if handcuffs had been placed on the
Constitution.

Common Cause filed a lawsuit earlier this year in federal district
court in Washington, asking the court to intervene in this matter,
and to declare the filibuster unconstitutional for all the reasons
above, and a hearing on the opposing motion to dismiss will be heard
the beginning of next week on Monday, Dec. 10th. We have carefully
reviewed the briefs on both sides, and believe that while Common
Cause has a compelling case on the merits, it may be not be easy to
get a federal judge to intervene in Senate procedural matters.

Still it would be interesting to follow this case, and so if you are
in the Washington, DC, area, and would be interested in attending the
hearing as a member of the public, to take notes and report back to
the rest of us how the hearing went, please speak up and volunteer.
In fact, the more the merrier.

In the meantime, we must operate on the assumption that the positive
change we must have can only result from sufficient political
pressure, so it is critical to keep building the action page
submissions and participation on this page into a meaningful
political force. We cannot depend on the courts to save us. We the
People must be prepared to shoulder the burden of fixing this all by
ourselves.