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Fillibuster constitutional?

The Week, a periodical I subscribe to, recently did a piece about the possibility of some Democrats in the Senate to block potential Bush Supreme Court nominees by filibuster if they deem them too conservative. The article went on to review several interesting questions including, what are filibusters, and are they constitutional?Simply stated, a filibuster is a maneuver by a senator or a group of senators to block a particular piece of legislation, appointment, etc., by the party in power. The filibustering senator simply keeps talking without relinquishing the floor, thus making it impossible to bring a matter to a vote. (Strom Thurmond once filibustered for 24 hours and 18 minutes to block the Civil Rights bill in 1957.)During the first Congress in 1789, both the House and Senate allowed any debate to be cut off by simple majority vote. The House of Representatives retains that rule to this day. So there is no filibustering in the House of Representatives. However, in 1806 Vice President Aaron Burr convinced a majority of senators that limiting debate might be OK for the House, but the “more exalted” Senate shouldn’t endorse cutting off one of their own during a speech. So the rule was dropped. As might be expected, filibustering became an acceptable tactic to keep legislation from reaching the Senate floor for a vote. (By the way, the term filibuster comes from the Spanish word filubusteros, which was a term used for Caribbean pirates who specialized in kidnapping people and holding them for ransom. Thusly, an unknown Washington reporter coined the term “filibuster” and ascribed it to those on the Senate floor who “kidnapped” legislation.)But are filibusters constitutional? Yes and no. No, because there is no article in the Constitution specifically allowing for filibusters. Yes, because there isn’t any language in the Constitution that prohibits them, either. Filibusters were created by a peculiarity in the rules of the Senate, not as a matter of being written into or out of the Constitution.During the 19th century there was no procedural way to force a senator to relinquish the floor (i.e., to shut up), and filibusters were widely used. But the matter came to a boiling point in 1917 when isolationist senators tried to block President Woodrow Wilson from arming merchant ships crossing the Atlantic before our entrance into World War I. An irate Wilson told the nation, “A little group of willful men representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” Shortly thereafter, the Senate passed Rule 22, which allowed that two-thirds of those senators present (a super-majority) could end a filibuster. The procedure was called “cloture.” Sixty years later, the rule was changed from two-thirds vote to 60 percent, or 60 senators if all senators are present.Which brings us to modern times. In 1968 conservative Republicans filibustered Lyndon Johnson’s proposed appointment of Abe Fortas to be chief justice of the Supreme Court (Republicans also buried about 35 of Bill Clinton’s judicial nominees without using the filibuster), and of course the Democrats got in their licks during President Bush’s first term, when they resorted to filibusters to block a number of his judicial nominees.Now the GOP warns that if Democrats attempt use the filibuster again (especially if there’s a vacancy on the Supreme Court), the presiding officer of the Senate (by law the vice president, Dick Cheney) will propose to change the rules making a simple majority (51 votes) all that is necessary to end a filibuster instead of the current 60. At last count, the Republicans controlled 55 of the 100 seats in the Senate. Oh, oh. Do you see what’s coming?But first, let look at the question, is filibustering ethical? Senate historian Robert Caro said, “If the filibuster is being used against you, it’s a vicious weapon of obstruction whose use in a democracy in unconscionable.” By that characterization the Democrats would be an unconscionable lot, right? However, Mr. Caro goes on to say, “If it’s you who are using that weapon then it’s a great one to have in your arsenal.” Viewed from that perspective, the Democrats would simply be “pragmatic” if they chose to make use of a tactic as old as the Congress itself.So let’s hypothetically create a scenario in which the president nominates someone “too conservative” for the liberal Democrats, and the Democrats threaten to block the nomination via filibuster. Would it then be wise for the Republicans with 55 votes and Dick Cheney presiding to change the rule and allow a 51 vote majority stop the filibuster?In a word, no. Here’s why: First, you cannot take the politics out of politics and an out-of-power party should be able to use certain tactics to their advantage, provided those tactics are not abused. (As an aside, it’s also a simple fact of human nature that if something desired is restricted or limited in some fashion, an alternative will be found.) Second, and as a practical matter, if a rule change is forced upon the Democrats, as sure as day follows the night, such a counter-tactic will come back to bite the Republicans in their collective derrieres when the Democrats regain the majority of votes in Congress. But regardless of how this all plays out, it’s guaranteed to make for interesting political theater.Butch Mazzuca of Singletree can be reached at bmazz68@earthlink.netVail, colorado


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