Mr. Smith Rewrites the Constitution (that unconstitutional filibuster)

[swag]

http://www.nytimes.com/2010/01/11/opinion/11geoghegan.html?ref=opinion&pagewanted=all

. . .

The procedural filibuster effectively disenfranchises the vice president, eliminating as it does one of the office’s only two constitutional functions. Yet the founders very consciously intended for the vice president, as part of the checks and balances system, to play this tie-breaking role — that is why Federalist No. 68 so specifically argued against a sitting member of the Senate being the presiding officer in place of the vice president.

Third, Article I pointedly mandates at least one rule of proceeding, namely, that a majority of senators (and House members, for that matter) will constitute a quorum. Article I, Section 5 states in part that “a majority of each shall constitute a majority to do business.” Of course, in requiring a simple majority for a quorum, the founders were concerned about no-shows for a host of reasons — not least of all because the first legislators had to travel great distances by stagecoach.

But the bigger reason for the rule was to keep a minority from walking out and thereby blocking a majority vote. In Federalist No. 75, Hamilton dismissed a supermajority rule for a quorum thus: “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 would be illogical for the Constitution to preclude a supermajority rule with respect to a quorum while allowing it on an ad hoc and more convenient basis any time a minority wanted to block a vote. Yet that is essentially what Senate Rule 22 achieves on any bill that used to require a majority vote.

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[Birthmark]

1. Those are all excellent points, imo.

[Igel]

2. They try hard.

But trying isn't doing.

Most charters/constitutions/bylaws set quorum rules. Having 50% of members or a majority of members present isn't uncommon, not because it keeps a minority from walking out and hamstringing the committee. There are other ways to avoid that. The rule's there to keep a minority from meeting and passing legislation. Without out, 20 representatives and 5 Senators could each meet and pass a law that the prez didn't want--then, when he vetoed it, they could meet and override his veto. Surely that's of greater important than the threat of a minority's absence triggering a quorum call. Sort of a positive threat versus a negative threat.

It's fine to quote sources that show what individuals were thinking. However, a standard rule of parliamentary procedure is that individual members of a committee, unless granted authority by the constitution or bylaws, are fairly powerless. They only have power as a body, it's not the case that given the power of the Senate each senator has 1/100th of the Senate's authority. People grant it all too willingly, and such practices usually lead to virtual satrapies. Those not on the committee, even if they were instrumental in forming the bylaws, have somewhat less authority.

Moreover, it is true and constitutional that the Senate can set its own rules. And the filibuster is a Senate rule. There are many Senate rules that I find annoying or harmful. This is not in the top 50.

The claim that the filibuster is unconstitutional is wrong. It's clearly a-constitutional in the sense that it's not condoned by the Constitution. But since the writer couldn't point to where the Constitution forbids it, or mount an argument against saying it's not a rule of the Senate that could be allowed, the claim simply stands as a claim. With the 92,493 other claims made in the last few weeks about what the Constitution might or could've-would've said had so-and-so had their way or if certain words were changed.

[Caretha]

3. a-constitutional ?

First time I've ever heard of that crap new word "a-constitutional"? What the hell does that mean? I've been participating in the democratic process for a long long time buddy, and that new terminology ain't going to fly! Next time I hear we need a 60 vote majority in the senate to pass legistlation...I'm going to kick that fucker in the nuts!