The Senate’s Supermajority Filibuster Cloture Rule is Unconstitutional

It’s time for citizen action

We the People of the United States have the right to enforce the provisions of the Constitution adopted in our name.  Article I, section 5 provides in pertinent part and referring to both the House of Representatives and the Senate, “…a majority of each [house] shall constitute a quorum to do business…”

By any objective standard, the Senate’s 60-vote cloture Rule to end a filibuster has gridlocked our government on contested legislation that at least attempts to address the pressing issues of our time.  Senate Rule 22, as applied now, has established a de-facto supermajority requirement to pass any contentious legislation.  Consequently, meritorious legislation is either dead on arrival or must be eviscerated to meet the Senate’s now-constant requirement for 60 votes to end a potential filibuster by cloture.

No principle of our democracy requires the citizenry to resign ourselves to such irreversibly obstructive behavior in the so-called world’s greatest deliberative body.  The Senate, as every other branch and subdivision of government, was created by “We the People” for our own benefit, not for the aggrandizement of its members.

In a nutshell, the contest between governance by majority rule or by supermajority, and thus minority rule, arises from Article I, section 5, which not only includes the provision, “a majority … shall constitute a quorum to do business,” but also, “Each house may determine the rules of its proceedings ….”

For too long, the shared political and pundit assumption seems to be that, since the 60-vote supermajority requirement arises from an adopted Rule of procedure, it is a discretionary political question whether the Senate chooses to effectively override the express provision for a majority to form a quorum and do business.  Thus has ended any meaningful discussion of the obvious inconsistency between the Constitution’s clear provision on majority rule and the Senate’s rulemaking power.  Since to date there is not a sufficient number of Senators to change or eliminate the supermajority requirement of Rule 22, supporters of the Constitutional principle of majority rule, which is regularly observed in the House of Representatives, have essentially run up the white flag in the Senate.

Citizens need not be mere spectators of the intramural antics of Senate members.  Since sovereignty lies in the People, not the government, citizens have the right to reclaim a functional and effective Senate from the shambles we now witness.  The Founding Fathers’ design of our governance in the Constitution deliberately and clearly provides for majority rule.  The Senate’s procedures for the filibuster and supermajority cloture have only one purpose, namely the obstruction and delay of majority will.

Since the Senate has not recognized that it supermajority cloture rule and associated practices effectively deprive an aggrieved citizenry and electorate of a functional legislature, the People are left with no alternative but to resort to the Courts to test the proposition that the supermajority requirement of Rule 22 is an unconstitutional violation of the Constitutional design of legislative majority rule created for our benefit.

The Founding Fathers Establish Majority Rule

The words, “We the People of the United States, in order to form a more Perfect Union…” found in the Preamble to the Constitution are not meaningless, nor a mere boast.  The Founding Fathers, including the Framers of the Constitution, had experience with ineffective government, including the requirement for a supermajority for action by the Continental Congress.  They intended to create in the new Constitution more perfect governing principles and institutions than they had endured.

The United States of America did not go from the Boston Tea Party to the Declaration of Independence to George Washington as the first President in one clean, quick leap.  Those events spanned almost sixteen years.

By 1778, approximately two years after the Declaration of Independence, most of the 13 colonies had adopted the Articles of Confederation to prosecute the ongoing Revolutionary War and to form a loose federation of independent states, meeting collectively as in the Continental Congress.  These Articles served as the incarnation of American government for nearly a decade.  After the British-American peace agreement in 1783, the inadequacies and occasional dysfunctions of the Articles and Continental Congress became more apparent for governing a now-independent country.  There were many contentious issues among the new States.  Some were practical, such as taxation.  Others were more philosophical, such as representation for the more populated States vis-à-vis the less populated States.  At the heart of the dysfunction was the Continental Congress, composed of a single voting delegate from each State.  In order to take action with even the limited powers enumerated in the Articles, a supermajority of 9 votes was required.  (Article IX)

Recognizing its own deficiencies, the Continental Congress authorized a convention in Philadelphia in May 1787 to propose revisions to the Articles.  However, the delegates from Virginia and Massachusetts strongly supported an entirely new constitution, instead of mere revisions of the Articles.

Virginia came to the Philadelphia convention with 15 proposed resolutions, embodying most of the ideas for our current three branches of government.  Ultimately, after extensive debate and the compromise of the proportionally represented House of Representatives and the equal State-appointed members to the Senate, the Convention completed its work on the draft Constitution.  The Continental Congress released the new Constitution to the States for consideration and possible ratification.

In those times, ratification was not a foregone conclusion.  To illuminate and influence the public debate, James Madison, Alexander Hamilton, and John Jay wrote a series of publications now known as the Federalist Papers.  In the closing paragraph of his Federalist No. 58, Madison expounded on the concept of majority rule.  Madison, of course, was aware of the proposed Article I, section 5 providing, “a majority of each [house] shall constitute a quorum to do business…”  Although Madison’s English is archaic in these times, his meaning is clear:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision.  That some advantages might have resulted from such a precaution, cannot be denied.  It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures.  But these considerations are outweighed by the inconveniences in the opposite scale. 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. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal [welfare], or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.   [Emphasis added.]

Madison was emphatic that majority rule is the fundamental principle of free government and any supermajority requirement which transfers governing power to a minority leads to the ruin of popular governments more than any other political practice.

The defenders of Rule 22’s supermajority will find no comfort from another Federalist author.  With remarkable foresight of today’s gridlock, Alexander Hamilton strongly opposed the imposition of a supermajority in Federalist No. 22,

To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is in its tendency to subject the sense of the greater number to that of a lesser [number].

But, its [a supermajority’s] 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 junto, to the regular deliberations and decisions of a respectable majority.

The public business must, in some way or another, go forward.  If a pertinacious [intransigent] minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater…Hence, tedious delays; continual negotiations and intrigue; contemptible compromises of the public good.  And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated.

In Federalist No. 75, Hamilton reaffirmed the principle of majority rule in the conduct of legislative business and was just as contemptuous of the effect of a supermajority requirement, which he found anathema to good government.

[A]ll provisions which require more that the majority of its 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….[T]he history of every political establishment in which this principle [of supermajority] has prevailed is a history of impotence, perplexity and disorder.

The Founding Fathers’ intent that the Senate should be the more deliberative, less impulsive legislative chamber is embodied in its composition, not its rules or practices.  The stability of the Senate was to arise from fewer and older members with longer citizenship, who were originally chosen by the state legislatures, with longer and staggered terms. (Article I, section 3)  Greater deliberation did not equate to creating supermajority gridlock in the Senate while a majority rules in the House of Representatives.  The majority rule provision of Article I, section 5 expressly applies equally to both the Senate and House.

Although not Constitutionally provided, whenever the Senate is considering any debatable question, a vote cannot be taken on that question so long as any Senator wants to be recognized to debate it.  Moreover, no Senator shall interrupt another Senator in debate without his/her consent.  (Rule XIX)  While these may be reasonable procedures to ensure full deliberation, they are obviously subject to mischief and abuse.  Under the current filibuster supermajority cloture practice, the procedural counter-balances that previously prevented permanent gridlock are now gone.

Perhaps the most popularly known image of a filibuster is the lone and noble Jimmy Stewart in Frank Capra’s iconic 1939 Mr. Smith Goes to Washington holding the Senate floor to the point of exhaustion, all for the Boy Rangers’ campground against the corrupt Taylor political machine.  Alas, today’s remote control version of the filibuster requires no such stamina or nobility, for the mere threat of a filibuster has now become the filibuster.  No endless speech is required to hold the floor of the Senate, and, using a hold, a single Senator can prevent a bill from even being considered.  This paradigm shift in how the Senate does its business now means that the House of Representatives needs only a majority vote to pass its contentious bills, yet a supermajority of 60 votes will be required to assure passage of the same bill through the Senate.

As currently practiced, the Senate filibuster and 60-vote cloture Rule 22 combine the exact practices Madison and Hamilton predicted and decried.  Namely, a minority of the Senate can use the supermajority requirement to end a filibuster to now obstruct even consideration of legislation favoring the general welfare or extort legislative concessions to gain sufficient votes to achieve the supermajority.  Most ironically, while America attempts to foster democratic institutions abroad, our own legislative process has devolved from its beginning to become less democratic than some others in the world.

Madison, who is credited by some historians as the Father of the Constitution, and Hamilton left no doubt the collective Founding Fathers’ design of our legislative process did not contemplate transferring governing power to a minority through a supermajority requirement at any phase of the deliberation and voting process.  Fundamentally, the filibuster and supermajority requirement are intended to allow the majority to form a quorum but prevent it from doing business, which is contrary to the Framers’ intent and the specific language of the Constitution.

Further proof that the Founding Fathers intended majority rule in the Senate is the Vice-President’s Constitutional role as the tie-breaking vote on contested legislation where the Senators are “equally divided.”  (Art. I, sec. 3)  The 60-vote cloture rule means that for contested legislation the Senate will never be “equally divided.”  Thus, Rule 22 impermissibly ends the Vice-President’s Constitutional role as tie-breaker.

Justiciability

Justiciability addresses the legal question of whether a court can hear a challenge to the constitutionality of the supermajority cloture requirement of Rule 22.  Defenders of the supermajority requirement argue that since Rule 22 is an adopted rule of procedure any challenge would be considered a “political question” and not be judicially reviewable.  However, the Supreme Court has allowed legal challenges where Constitutional constraints are ignored or fundamental rights are violated.

The Supreme Court reviewed the justiciability of a House rule to determine the presence of a quorum in U.S. v. Ballin (1892) 144 U.S. 1.  Ballin, an importer whose goods were subject to duty, challenged the statute imposing that duty by challenging House Rule XV which allowed the Speaker to count voting members and non-voting members in determining a quorum.  The Circuit Court had sustained Ballin’s claim, and the United States appealed.  In finding the Rule and statute valid, the Court noted,

Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration.  With the courts, the question is only one of power.  The Constitution empowers each house to determine its rules of proceeding.  It may not by its rules ignore constitutional constraints or violate fundamental rights… (144 U.S. 1, 5)  [Emphasis added.]

As the Court in Ballin addressed the validity of Rule XV as to determining whether a quorum-forming majority is present, it also defined the concept of majority rule that it found in the Constitution and signaled a justiciable issue exists here since, on its face, Senate supermajority cloture Rule 22 ignores constitutional constraints establishing majority rule for general legislative business:

The Constitution provides that “a majority of each [house] shall constitute a quorum to do business.”  In other words, when a majority are present in the house in a position to do business, its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent of any single member or fraction of the majority present.  All the Constitution requires is the presence of the majority, and when the majority are present, the power of the house arises. (144 U.S. 1, 5-6)

Thus, Senate Rule 22 requiring a 60-vote supermajority to end a filibuster is not a mere political question since it violates an express Constitutional constraint, by adding a requirement for additional votes in excess of a majority to do legislative business.

Additionally and separately, the supermajority requirement of cloture Rule 22 violates voter’s fundamental rights to equal protection of the law, also creating another justiciable issue.  In the early 1960’s, the Supreme Court addressed Congressional district mal-apportionment in Wesberry v. Sanders (1964) 376 U.S. 1, and its state legislature equivalent [Baker v. Carr (1962) 369 U.S. 186], providing ample supporting precedent for justiciability.

In Wesberry, a class of aggrieved citizens and qualified voters challenged Congressional District apportionment in a federal Civil Rights Act class action.  A single Congressman represented from two to three times as many (Atlanta) Fifth District voters as were represented by the other Georgia Districts.  While the trial court acknowledged the disparity, it nonetheless dismissed the case for raising only “political” questions.  The Supreme Court disagreed with the dismissal, finding, ….[T]he right to vote is too important in our free society to be stripped of judicial protection…” (376 U.S. 1, 7)

The Court reasoned that a mal-apportioned Congressional District contracts the value of some votes and expands that of others. (376 U.S. 1, 7)  If the right to vote is to mean anything, then the “representative” weight or value of that vote needs to be equal within the chambers of the Senate, as well.  Inherently, the supermajority requirement for cloture contracts the representative weight of the voter for the majority while expanding the representative weight of the voter for the minority, all in violation of the equal protection provided by the Constitution.

Thus, the assertion that the supermajority requirement of Rule 22 is only a “political question” and not subject to judicial review falls to unequivocal Supreme Court precedents which confirm the justiciability of a violation of Constitutional constraints and fundamental rights. The People have access to the Courts to remedy Rule 22’s abuse of majority rule.

 

Rule 22 Violates an Express Constitutional Provision

After years of frustration with the Articles of Confederation and the Continental Congress, the Founders designed a more perfect union to include a new workable Congress.  That design, embodied in the new Constitution provided, among other things, that each house shall abide by majority rule.   By its own express terms, the Constitution established a two-house legislature (Art. I, sec. 1) and provided for majority rule with the provision, “…a majority of each [house] shall constitute a quorum to do business…” (Art. I, sec. 5)  Congress, itself, does not possess the power to change the originating Constitutional design for governing the legislative branch by majority rule.

In deciding the validity of a House rule as to the presence of a quorum in U.S. v. Ballin, the Court reviewed historical and legal precedents for ascertaining a majority and the powers which arise when a quorum is present.  The Supreme Court’s interpretation of Constitutional majority rule was written in 1892, 25 years before Rule 22, and so reflects nearly 100 years of Senate history where the exploitation of Senate rules, or lack thereof, to block Senate activity was rare and a simple majority was sufficient for ending debate and passing legislation.

The Constitution provides that “a majority of each [house] shall constitute a quorum to do business.”  In other words, when a majority are present in the house in a position to do business, its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent of any single member or fraction of the majority present. All the Constitution requires is the presence of the majority, and when the majority are present, the power of the house arises. (144 U.S. 1, 5-6)  [Emphasis added.]

As appears from the journal, at the time this bill passed the House, there was present a majority, and the House was authorized to transact any and all business. It was in a condition to act on the bill if it desired.  The other branch of the question is whether, a quorum being present, the bill received a sufficient number of votes, and here the general rule of all Parliamentary bodies is that when a quorum is present, the act of the majority of the quorum is the act of the body.  This has been the rule for all time except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations.  As, for instance, in those states where the constitution provides that a majority of all members elected to either House shall be necessary for the passage of any bill.  No such limitation is found in the federal Constitution, and therefore the general law of such bodies obtains. (144 U.S. 1, 6)  [Emphasis added.]

The 60-vote supermajority of Rule 22 violates word-for-word the Supreme Court’s definition of the meaning of Article I, section 5.  When a majority of all Senators is present, the Senate’s capacity to transact business is established and does not depend upon the agreement of a fraction (i.e., minority) of the Members present. Contrary to the Supreme Court’s definition of Constitutional majority rule, the filibuster and 60-vote supermajority requirement of Rule 22 are intended to allow a majority to form a quorum but deliberately prevent it from transacting business.

It would be too narrow and defeating a construction of Article I, section 5 to allow a majority vote only on a bill’s final adoption while allowing the requirement of a 60-vote supermajority in intermediate legislative deliberations and actions, which could prevent a bill from reaching final adoption.  If the Senate has the power constitutionally to establish a 60-vote requirement for cloture, then the Senate would also possess the power to require a supermajority of 67, 75, or 99 votes, all beyond the review of the Courts.  Such a potentiality reflects the obvious that, except for limited instances already specified in the Constitution, the Senate does not possess the power to adopt any requirement for a supermajority whatsoever in the conduct of any and all legislative business.

The Constitution, itself, does provide for a supermajority in some limited cases, which by traditional rules of statutory construction means that a supermajority is not allowed in any other instances.  For example, a two-thirds majority is required to expel a member (Art. I, sec. 5), override a Presidential veto (Art. I, sec. 7), propose an amendment to the Constitution (Art. V), and declare the President unable to discharge his duties (25th Amendment).

Further, traditional rules of statutory interpretation provide that, within a body of law, a specific provision controls a more general provision.  See Ballin, above, pronouncing that specific provisions of an organic act control general provisions.  (144 U.S. 1, 6)  Thus, the general provision of Article I, section 5 allowing that each house “may determine the rules of its proceeding…” is controlled by the more specific provision of Article I regarding how each house shall conduct its proceedings, with a majority constituting a quorum enabling the Senate to do business.

Consequently, Senate Rule 22 violates the specific terms of Article I, section 5, namely that “…a majority of each [house] shall constitute a quorum to do business…”and must be declared unconstitutional since it requires, in the presence of a quorum, a 60-member supermajority for transacting legislative business.

 

Equal Protection of Voting Rights

In Federalist No. 58, Madison unequivocally stated that requiring more than a majority of a quorum for passage of legislation reverses the fundamental principle of a free government.  The majority would no longer rule; ruling power would be usurped by the minority.  Hamilton concurred in Federalist No. 75.

The supermajority requirement of Rule 22 that transfers governing power to the minority has the effect of contracting the political power of voters for the majority, while expanding the power of voters for the minority.  Specifically, the power of the voters who elected sufficient Senate members to constitute a majority and quorum to “do business” as prescribed by Article I, section 5, is debased in comparison to the power possessed by voters electing a minority of 41 Senators sufficient to block the Senate under Rule 22from doing any and all legislative business.

In the landmark Baker v. Carr (1962) 369 U.S. 186, the Supreme Court reasoned that voters in numerically disproportionate state districts were denied the equal protection of the law under the 14th Amendment.  The principle of one-man, one-vote emerged to require state legislative redistricting by equal population.  This reasoning was subsequently applied to Congressional district apportionment in Wesberry v. Sanders (1964) 376 U.S. 1.

The apportionment statute thus contracts the value of some votes and expands that of others.  If the Federal Constitution intends that, when qualified voters elect members of Congress, each vote be given as much weight as any other vote, then this statute cannot stand.  (376 U.S. 1, 5)

Note that in both Baker and Wesberry, the voters were not denied the right to physically cast ballots in their District.  They did get to vote.  Rather these voters were denied the right to cast votes with equal representational power or weight.

If only 41 votes are required to block cloture of a filibuster and prevent legislative business from proceeding, then the representational weight of the majority-constituting Senate members is diluted compared to the minority members, which in turn means all voters casting ballots sufficient to elect an action-taking majority have “diluted” representational power compared to voters for the action-blocking minority.  The Supreme Court in Wesberry stated unequivocally,

No right is more precious in a free country than that of having a voice in the election of those who make laws under which, as good citizens, we live.  Other rights, even the most basic, are illusory if the right to vote is undermined.  (376 U.S. 1, 17)

The right to vote carries with it the right of equal representation.  A voter is just as entitled to not have the political weight of his vote be contracted by the Senate supermajority rule as the same voter is entitled to not have mal-apportionment dilute the weight of his vote.  The supermajority requirement of Rule 22 is an unconstitutional deprivation of equal protection of the fundamental voting right under the 14th Amendment.

Conclusion

The Founding Fathers’ documentation and Supreme Court cases support the conclusion that the Senate does not have the power to change the originating Constitutional majority-governed design of the legislative branch by adopting a rule of procedure.

Inherently, a Senate governed by supermajority frustrates the will of the majority of the electorate and invalidates the Constitutionally-valued concept of one-man one-vote.  There is no legal or policy defense to discarding the Constitutional design of the Founding Fathers for general legislative governance by majority rule.  The Senate should be given the opportunity to act immediately to revise Rule 22 to eliminate any requirement greater than a simple majority of the quorum for the conduct of routine legislative business.  Otherwise, the aggrieved citizens who voted for the Senate members and have seen the political weight of their votes contracted should pursue a Court decision declaring Rule 22 unconstitutional and enjoining its further use.

 


 

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