What are we to make of this thing called the filibuster? Neither the idea of it nor the word itself can be found anywhere in the US Constitution. The filibuster is a creation of the Senate, and perhaps its curse as well. They have only themselves to blame for it and the trouble it presents to democratic majority rule. From the very 1st Congress through the 64th Congress, the Senate had no rules whatsoever regarding the length of debate. Unlike the House of Representatives, debate in the Senate was unregulated as to its duration. Any Senator “with the floor” could hold it for as long as they liked.
On March 8, 1917, during the 65th Congress, in which the Senate had 52 Democrats, 43 Republicans and 1 Independent, the Senate adopted Rule 22, otherwise known as the filibuster rule. It established a two-thirds vote as the number necessary to invoke cloture or to shut down a filibuster. The two-thirds requirement remained in effect until the 104th Congress in 1975 when Rule 22 was amended to reduce that vote to three-fifths. The 104th Congress had 52 Republican Senators and 48 Democrats. Nevertheless, two-thirds of them cooperated in reducing the number of votes needed to shut-off debate in the Senate chamber. It’s been that way ever since.
It is interesting to note that of the 111 sessions of Congress in the history of the United States of America only one – the 89th Congress – had a political party breakdown capable of stopping the minority from launching a filibuster. The assassination of JFK combined with the Republican Party’s nomination of Barry Goldwater resulted in the 89th Congress with 68 Democrats and 32 Republicans. It served from 1965-1967. Perhaps it’s only a coincidence that this Congress managed to pass the Civil Rights Bill of 1964, the Voting Rights Act of 1965 and they created Medicare as well. No other Congress, of all the 111 that have served the country can lay claim to such radical or revolutionary legislation.
The question naturally arises – Is the filibuster, and Senate Rule 22, constitutional? Yes, the Constitution does give the Senate the authority to set its own rules. But, can those rules violate the Constitution itself? What if the Senate passed a rule making only white Senators eligible to serve? Sure, only Senator Roland Burris of Illinois would be affected today, but still… would such a Senate rule be constitutional? Could they do that? Could, for example, a future Senate vote to exclude Senators of a certain religion, or sexual orientation? If the Senate can "determine the rules of its proceedings…” couldn’t it do that?
It’s doubtful that any legal expert would agree that such a Senate rule could survive a constitutional test in the Supreme Court.
So, what about the filibuster rule, Rule 22, and its obvious conflict with the powers of the Vice President as expressly written in the US Constitution?
The powers and duties of the Vice President are only mentioned in two places in the Constitution. In Article II, Section 1 the document details the succession of the Vice President to the Presidency when the President can no longer fulfill that position. However, it is what is written in Article I, Section 3 pertaining to the more mundane duties assigned to the Vice President of the United States that is of importance regarding the filibuster. The Constitution says: “The Vice President of the United States shall be the President of the Senate, but shall have no vote, unless they be equally divided.” That’s it – the Vice President breaks tie votes in the Senate. The Constitution actually says this in clear and unambiguous wording – “…no vote, unless they be equally divided.” Can there be any question about what that means?
The Constitution doesn’t just envision the possibility of a tie vote in the Senate. It recognizes the certainty of it and it further recognizes a one-vote majority as carrying the issue, one way or the other. A majority carries the issue at hand. No mention of any “super-majority.” Whatever the exact vote total may be, if “they be equally divided” the Vice President’s tie-breaking vote is the deciding one. How can the Senate pass a rule – such as Rule 22 – that eliminates the possibility of a tie vote? A Senate rule to the contrary, one making it impossible to have a tie vote seems to violate the constitutional duties and powers granted the Vice President. How else could the Vice President break a tie if no tie vote is possible?
Anything greater than a simple majority essentially robs the Vice President of his or her constitutionally designated power and authority. Thus, the whole idea of needing 67 or 60 or any number of votes greater than a numerical majority to get something passed – even to invoke cloture and call a vote to order – seems to be unconstitutional.
The US Constitution has real meaning. No court has ever said anything like… “Well that doesn’t really matter.” Even the most obscure provision still holds sway. When discussing the Congress and its separation from the Executive branch, America’s founding document states the following: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased [sic] during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
A little on the obscure side, but the intent there is simple enough to determine. No sitting member of the House of Representatives and/or no currently serving member of the Senate may be appointed to a job in the Executive branch which was either created by or had its compensation increased by the very same Congress of which that member was part of. Who could not understand this detailed and specific prohibition? Should Congress create an executive position or increase the pay of an existing executive position, no member of that Congress may take that job. Additionally, if a current member of either house of Congress does take a job in the administration, they must give up their seat in Congress. No one can serve in both jobs at the same time.
The Constitution – on this point - is clear, unambiguous and not subject to any esoteric interpretation.
So it was when Hillary Clinton, then a sitting Senator from New York, agreed to become the Secretary of State in the new Obama administration, she had to both resign from the Senate and the position she was taking, namely that of Secretary of State, had to have its salary rolled back because Senator Clinton was a member of the same Senate that had previously increased the Secretary’s compensation. Check it out… it says, “…or the Emoluments whereof shall have been encreased(sic) during such time…” Sure, the increase was meant for Secretary Condoleezza Rice, but that doesn’t matter. The wording of the Constitution is explicit. No one thought to disregard this when Senator Clinton became Secretary of State Clinton. The pay for the position was indeed rolled back.
The wording of the Constitution is equally clear and equally unambiguous about how Congress goes about deciding to operate on a daily basis. Here is exactly what the Constitution says: “Each House may determine the rules of its proceedings…” It’s simple and straightforward. The Senate can make up any rules at all for its own operation. Are they limited to reasonable rules? How silly or strange might they possibly be? For example: the Senate could require all Senators to stand on one leg when they speak, or require them to speak from a prone position, or sitting down, or while doing a handstand, or with a finger stuck in their ear… or anything? Yes, they could do anything even as foolish as that. If the Senate can “…determine the rules of its proceedings…” then it can do anything, right?
Well, almost anything. No reasonable person would assert that the Senate might promulgate rules that violate the Constitution. Even the constitutional rights of Congress have limits. Hardly any portion of the Constitution is without some limitation.
The First Amendment guarantees freedom of speech, but everyone agrees – especially the Supreme Court – that this freedom does not extend to crying “Fire!” in a crowded theater, or for that matter, engaging in libel or slander. But, if you want to call the President of the United States a Marxist, a Leninist, a socialist, an illegal alien born in Kenya, or even a fucking idiot – go right ahead – that is Constitutionally protected speech.
The question remains, however, is Senate Rule 22 constitutional?
The Majority Leader of the Senate – right now that would be Harry Reid of Nevada – has the authority to declare, from his desk as Presiding Officer, that Rule 22 is unconstitutional and therefore no longer in effect. If a simple majority of Senators voting agreed with such a ruling from the Chair, the filibuster would become a thing of the past.