Unconstitutional Republicans

The Republicans are rejoicing in their candidate's victory in Massachusetts tonight.  Senator-elect Brown constitutes the 41st member of the Republican Senate Caucus, and thus cloture on any vote necessitates 60 votes to end debate.

Obviously, the Republicans plan on blocking Health Care Reform.

Do the Republicans realize their actions are unconstitutional?

Here are the facts regarding the filibuster:

First, Article I, Section 5 of the Constitution states:  "Each house may determine the rule of its proceedings."  The Senate rule in question, Senate Rule 22, determines that a 60-vote supermajority is needed for "cloture," or the end of debate.  

Second, The Constitution requires supermajorities in only a few special cases:  ratifying treaties; ratifying constitutional amendments; overriding presidential vetoes; expelling members of Congress; and impeachments.

Third, Article I, Section 3 of the Constitution expressly says the vice president is the presiding officer of the Senate, and should cast the deciding vote when senators are "equally divided".

Fourth, Article II, Section 2 grants the President the authority to appoint officers, "with the advice and consent of the Senate."

FINALLY…Article I, Section 5, Clause 1 states that "…a Majority of each (house) shall constitute a Quorum to do business."

Let me address each point in order.

First, while each House may determine its "proceedings," Senate Rule 22 is merely a procedural rule.  Before 1975, the rule required 67 votes for cloture, and a filibuster actually necessitated a senator to speak until they literally keeled over from exhaustion.  Senate Rule 22 does not appear in the Constitution, and unlimited debate did not exist until Vice President Burr presided over the Senate in the early 1800s.  The revised Rule 22 in 1917 was meant to stop unlimited debate, but the revision in 1975 does not require senators to keep talking; there is in fact no debate.

Second, in the Federalist Papers, Alexander Hamilton or John Jay defend a particular supermajority rule, but they do so at great length; it is as if there is an obvious sense of guilt over the departure from majority rule.

Third, the "procedural" filibuster does an "end run" around this constitutional requirement, which presumed that only truly contested bills would be tied.  The filibuster disenfranchises the vice president, eliminating one of the vice president's only 2 Constitutional functions.  Indeed, Federalist # 68 specifically argues against a sitting member of the Senate being the presiding officer in place of the vice president.  The vice president was obviously viewed as part of the system of checks and balances on abuses by the Legislative Branch.

Fourth, there is no rationale for a filibuster when the Senate acts under Article II.  The Senate's role is to accept or reject presidential nominees, not to delay what is fundamentally an Executive Branch function…that is, filling office vacancies.  As Professor David Crockett of Trinity University, San Antonio has said, "It is inappropriate for the Senate to employ a delaying tactic normally used in internal business…the construction of legislation…in a non-legislative procedure that originates in a co-equal branch of government."

Finally…why would the Constitution state that only a majority is needed to constitute a quorum to do business?  Obviously, the Founding Fathers were concerned about no-shows for a number of reasons…not the least of which was the time it took for the first legislators to travel by horse and buggy to reach the capital.

The bigger reason, however, was to keep a minority from walking out and blocking a majority vote.  In Federalist #75, Alexander Hamilton dismissed supermajority rule for a quorum:  "All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority."

It is illogical for the Constitution to preclude a supermajority rule with respect to a quorum while allowing it on an ad hoc and convenient basis anytime a minority wishes to block a vote.  However, that is EXACTLY what Rule 22 does.

For the record, I hate the filibuster, whether used by Democrats or Republicans.  The House and Senate produce legislation, and we must respect the results of elections and the effect those election results have upon the laws of our country.

For the record, a majority of House Members and Senators support Health Care Reform.

A Republican minority wishes "…to embarrass the operations of the government" and "…subject the sense of the majority to that of the minority."

For the record, Republicans are acting unconstitutionally.

P.S.  Anyone who says "Naa-Naa-Boo-Boo, we don't care…we stopped the Democrats, YAY!"…has proved my point, and elevated the mis-use of power over the rule of law.

(A large amount of credit for the collation and elucidation of these arguments against the filibuster belongs to Thomas Geoghegan, Kevin Drum from Mother Jones, and William Kristol from The Weekly Standard.)