Filibustering Is Not Obstructing

Empty Chair at Supreme Court. Photo: OneNewsPage.com

Empty Chair at Supreme Court. Photo: One News Page.

When the Democrats launched a filibuster against the confirmation of Judge Gorsuch to the Supreme Court, some claimed that it was only nasty revenge for the refusal of the Republicans in 2016 to vote, or even hold hearings, on the nomination of Judge Merrick Garland. The comparison is not apt.

Judges Gorsuch and Garland are both highly gifted members of the U.S. Courts of Appeals, judicial offices second in rank only to the justices of the Supreme Court. There the similarity ends. [Read more…]

No Option for Filibuster

Filibusters by Republicans and Democrats.

Filibusters by Republicans and Democrats.

Even after 20 children were shot to death at Sandy Hook Elementary School on Dec. 14, 2012, gun-control legislation was shot down in the Senate. Although 54 senators voted in favor of a proposal to expand background checks on gun purchases, this amendment was defeated for failure to attain the 60 votes needed to force a vote. In other words, the filibuster was the opponents’ weapon of choice.

The House of Representatives adopted a “public option” to administer health-care coverage in 2009, but it was not an option in the Senate. Because of concern that a bill containing the public option could not get the necessary 60 votes, the public option was removed from the Senate bill. The cause of death: a potential filibuster.

As the presidential election moves into its final stages, the fate of the filibuster deserves attention equal to the ramifications of the Electoral College and the attendant congressional elections. [Read more…]

Bust the filibuster already

When Harry Reid blames Republicans for obstruction, he neglects to mention that the Democratic majority in the Senate enables it by allowing the filibuster to persist. Now that Democrats kept their majority on Nov. 6, it is long overdue to curtail the power of the filibuster.

More after the jump.
Many factors contribute to our current economic misery — Republican abuse of the Senate filibuster, GOP control of the House of Representatives, President Obama’s inexperience and an overwhelming mess that nobody could fix in four years.

It still boils down to Harry Reid and his merry band of Senate Democrats, or some of them. Tom Harkin, Jeff Merkley and Tom Udall rate credit for attempting to rein in a historically dumb and destructive legislative mechanism.

Some weeks before Obama’s re-election, the Senate majority leader was on television relaying the latest filibuster count — 382 filibusters since the Democrats seized control of the Senate six years ago. I groaned as I listened to Reid whine: “They’ve conducted filibuster after filibuster blocking one bill after another. They’ve blocked judge after judge after judge.”

All true.

“The party trying to defeat President Obama has tried to make the president look bad.”

So far, so good.

Then, standing in the well of the Senate, Reid baldly lied: “For him (an unnamed Republican senator) to come and say the Senate is not working because of the Democrats is a big lie.”

Reid compounded this fib by adding: “Republicans are complaining about a result that they caused.”

No question that Republican behavior pre-Nov. 6 was disgusting. They employed the filibuster to block sensible legislation that they once supported…before they opposed it. Guess who handed them this kind of power, or at least allowed them to hold onto it.

Democrats had three opportunities to eliminate or curtail the power of the filibuster since they were elected to the majority in 2006. A majority of the Senate can change the body’s rules on the first day of the legislative session in early January, though some may dispute this. Democrats could have attempted such a move in 2007 and 2009, and some made a spirited effort in 2011.

Even if it was successful, the 2011 bid probably would not have worked because of Republican control of the House then. However, action against the filibuster in 2007 and 2009 would have likely made a difference then since Democrats also held the majority in the House.

Two of the most prominent measures — tax cuts for the wealthy and the “public option” for health-care reform — were blocked by the filibuster; an independent and a Democrat were among the opponents.

A health-care bill authorizing some form of a government-run health care system, a.k.a. as a “public option,” passed the House in 2009, but could not make it through the Senate.

Without the filibuster, Congress would no doubt have passed far more of its legislation aimed at combating the recession. If those measures succeeded to an appreciable degree, maybe Republicans would have had no substantial issues with which to incite voter wrath – and Democrats would not have lost control of the House in 2010.

Team Udall entered the fray in January 2011 when they proposed that any senator threatening a filibuster must present their arguments on the Senate floor. Not enough takers, even among Democrats.

Behind the scenes, Reid and GOP leader Mitch McConnell reached a deal allowing the Republicans to keep the filibuster so long as they did not abuse this power. The rest is history.

Reid himself liked the filibuster at the time, along with some other Democrats. Yet he reversed himself last May when he vindicated Team Udall’s quixotic bid to curtail the filibuster’s power. He was mad when Republicans blocked a bill to reauthorize the Export-Import Bank, Politico reported.

“If there was anything that ever needed changing in this body, it’s the filibuster rules, because it’s been abused, abused, abused,” Reid declared on the Senate floor.

A few days later, Common Cause announced a lawsuit to declare the filibuster unconstitutional because the Constitution “envisioned majority rule except where specifically stated otherwise.”

On Tuesday, Nov. 13, a New York Times editorial urged measures to curtail the filibuster’s powers when the next Senate convenes in early January.

Short-term, the filibuster may not be problematic because the election has left Republicans in a more cooperative, and humbled, mood. Still, the GOP can feel emboldened to filibuster any time, without warning, if the tide turns again.

There is nothing like the rule of law to stop bad behavior dead in its tracks. Please go for it, Sen. Reid.

Bruce S. Ticker of Philadelphia is author of the e-book George Costanza Goes to Washington which describes fault lines in the political system. Ticker can be reached at ticker@pjvoice.com.

Sen. Boxer’s knockout election, Sen. Craig’s bathroom bust

Senator Barbara Boxer joins Marines in Iraq at mealPart 6 of American Vision by Bruce Ticker

‘It is appalling that a united House position – and common sense – weren’t enough to convince the Senate that the most at-risk areas need this security funding,’

– U.S. Rep. Nita Lowey, from New York’s Westchester County

The composition of the U.S. Senate threatened to partly claim homeland security funds for New York City.

The city that bears the starkest terrorist target on its back was competing with 64 cities for shrinking funds, from $887 million to $725 million in the budget that ran to Sept. 30, 2011. The 20 percent cut was part of the Republican-imposed budget deal reached between President Obama and members of Congress.

More after the jump.
New York House members attempted to pare down the number of eligible cities from 64 to 25 or less, but Senate members vetoed the idea, according to The NY Daily News.

U.S. Rep. Nita Lowey, a Westchester Democrat, told the News that the city would lose $27 million because of the large number of competitors.

“It is appalling that a united House position – and common sense – weren’t enough to convince the Senate that the most at-risk areas need this security funding,” she said.

Rep. Pete King, a Long Island Republican, added, “I guess Nashville has the Grand Ole Opry, but in terms of landmarks at risk and assets being targeted, nothing comes close to New York City.”

Besides Nashville, other cities eligible to compete for anti-terror funds were Anaheim, Calif., Bridgeport, Conn., Baton Rouge, La., Omaha, Neb., Toledo, Ohio, and Richmond, Va., according to the News.

Eventually, Janet Napolitano, Secretary of Homeland Security, pared down the number of cities eligible for this money, allowing NYC to receive more funds.

It is a common practice for lawmakers to respond to a situation which mainly affects one or a few communities by spreading funds to other towns which do not need it for this purpose. That’s why state money is often allotted to wealthy as well as poor school districts.

On the federal level, we are stuck with a dual system of tradeoffs. All House members represent the same number of people, but senators can demand more because each state is represented by the same number of senators no matter what the population.  

As a result, senators from a large state must concede even more than they would if the Senate was based on proportionate representation.Senator Larry Craig of Idaho


Barbara Boxer and Larry Craig served in the Senate simultaneously for 16 years. Craig, first elected in 1990, retired in disgrace in 2008, after he made some unusual gestures to an undercover police officer in the next toilet stall at a Minneapolis airport restroom.

In her 2004 re-election bid, Boxer achieved bragging rights to winning more votes – 6.9 million – than any senator in American history. She certainly won more votes than many of our earlier presidents. Boxer’s accomplishment can probably be attributed to her staying power and the ongoing growth of her adopted state. Faced with an aggressive opponent in 2010, Boxer could not match her 2004 record, though she was still re-elected.

Minneapolis restroom where Senator Larry Craig was arrested.California’s population is now up to 36.9 million and Idaho is home to 1.5 million, yet Boxer and Craig exercised exactly the same level of clout from 1993 (when Boxer joined the Senate) to 2009.  As a reminder, members of Congress are elected in November during an even year and assume office in early January.

This contrast exemplifies, if to an extreme degree, that the constitutional requirement of two Senate seats for each state does not work in a democratic system. It allows all the less populous states to exercise far more clout than the bigger states.

In his book “How Democratic is the American Constitution?”, Yale professor emeritus Robert A. Dahl writes, “Because the votes of U.S. senators are counted equally, in 2000 the vote of a Nevada resident for the U.S. Senate was…worth about 17 times the vote of a California resident. Surely the inequality in representation it reveals is a profound violation of the democratic idea of political equality among all citizens.”

Dahl’s book cites James Madison’s words: “The states were divided into different interests, not by their differences in size, but by other circumstances.”

Minority groups have long been impaired by this system. Dahl recounts that between 1800 and 1860 the House passed eight anti-slavery measures that were all defeated in the Senate. The South exploited its Senate power to end Reconstruction “and for another century it prevented the country from enacting federal laws to protect the most basic human rights of African Americans,” Dahl writes.

What more damage can be done if the Senate continues in its current form?

A recommendation to improve the system, detailed in a future chapter, would transform the operation from the equal number for each state to a more proportional method. The least populous states would lose one senator and senators in larger states would represent sections of each state. Depending on their size, some states would be authorized to elect more than two senators. On the surface, such changes must pass through the amendment process, which makes it appear impossible that it will ever happen.

More infuriating is the persistence of the filibuster rule which obstructs sensible legislation even more. It was born in folly and is protected in folly. We can safely compare treatment of the filibuster to Seinfeld’s Bizarro World.

Profiles in Absurdity


Rep. Debbie Wasserman-Schultz (D-FL) escorts Rep. Gabrielle Giffords (D-AZ) into the House of Representatives for the 2012 State of the Union

Part 3 of American Vision by Bruce Ticker

You are the most vile, unprofessional and despicable member of the U.S. House of Representatives
— Allen West’s belated Valentine’s Day message to colleague Debbie Wasserman-Schultz

To revive the economy, a majority of the House slashed  $126 million during February 2011 from the National Weather Service, the agency which operates the Pacific Tsunami Warming Center in Hawaii, which in turn issued warnings minutes after the March 11, 2011, earthquake and tsunami that devastated Japan.

“The nation is in an historic fiscal crisis, and it is imperative that the Congress roll back spending in virtually every area — including NOAA — so that we can help our economy (get) back on track,” explained Jennifer Hing, GOP congressional spokeswoman

Tea partiers ignored safety concerns when they eliminated $61 billion in expenses. The House passed a bill slashing $61 billion, but the Democratic-controlled Senate disregarded the legislation.

More after the jump.
A union representative, quoted by the Associated Press, said the proposal could lead to furloughs and rolling closures of weather service offices, which might in turn impair the center’s ability to issue warnings comparable to those issued on March 11. “People could die,” said Barry Hirshorn, Pacific region chairman of the National Weather Service Employees Organization.

The weather service cuts were part of $454 million in reductions for the National Oceanic and Atmospheric Administration.

Hawaii’s congressional delegation, all Democrats, asserted the need for the warning system, AP reported. “This disaster displays the need to keep the Pacific Tsunami Warning Center fully funded and operational,” said Sen. Daniel Inouye, chairman of the Senate Appropriations Committee. “I hope my Republican colleagues in the House are now aware that there was a horrific earthquake and tsunami in the Pacific.”

Hing, spokeswoman for the House Appropriations Committee, insisted that House members understand that critical lifesaving and safety programs are maintained, according to AP. She said funds for a network of buoys to detect tsunamis in the Pacific Ocean will be retained.
It would be devastating if Hawaii and California were struck by a tsunami without an opportunity to minimize the damage. Hawaii is a tourist mecca and California is our most populous state, home of countless, innovative industries.

One would think the Republicans are anxious to preserve that part of our economy.


Our system has produced many members of the House and Senate who have done well, and there have been times they disgraced their office. A few samples of the latter, mainly Republicans:  

John A. Boehner infused three odious attitudes into this Feb. 15, 2011, sound bite:

Over the last two years, since President Obama has taken office, the federal government has added 200,000 new federal jobs. And if some of those jobs are lost in this, so be it. We’re broke.

Boehner, Speaker of the House then, was accused of lying about those 200,000 jobs and shed no tears — his specialty, remember? — over lost jobs, but what’s really incredulous is his claim that “we’re broke.” He broke the national bank, along with most of his cronies in Congress and the former Bush administration. They could have saved programs under the “human services” label by raising taxes on the wealthy.

Thank the filibuster and the Senate’s composition. The Democratic majority in December 2011 sought to restore higher tax rates for couples earning more than $250,000 yearly, but the filibuster process blocked it.

George W. Bush entered the White House with a comfortable surplus and produced a colossal deficit. In between, the United States invaded Afghanistan and Iraq and slashed taxes for the wealthy.

Our military forces exited Iraq at the end of 2011 and, at this writing, we are stuck in Afghanistan. In December 2010, Democrats in Congress sought to revive higher tax rates for the wealthy, but Senate Republicans filibustered their way to maintain the lower tax rates.

Boehner never complained. He must share the blame now that “we’re broke.” So be it.

Elsewhere on Capitol Hill, Sen. John McCain reminded Secretary of Health and Human Services Kathleen Sebelius at a committee hearing that his governor sent her a request to waive Medicaid requirements to save $541 million in annual state expenses. This exchange was broadcast on C-span.

In March 2010, when Obama signed the watered-down Affordable Care Act into law. McCain did his part in quashing any chance for creation of a publicly-funded health-care system.

On Jan. 19, 2011, 242 Republicans and three Democrats in the House passed the “Repealing the Job-Killing Health Care Law.” Arizona’s Republican House members who voted for it were Jeff Flake, Trent Franks, Paul R. Gosar, Benjamin “son of Dan” Quayle and David Schweikert, while Arizona Democrats Ed Pastor and Raul M. Grijalva voted against the bill. Of course, Democrat Gabrielle Giffords was hospitalized after surviving the Jan. 8 assassination attempt.

Arizona was among 26 states challenging the health-care law in court. One federal judge even ruled the entire law to be unconstitutional. However, these challenges were expected to be decided by the Supreme Court.

At the same time, Arizona Gov. Jan Brewer faced a cash-flow nightmare. Collectively, many states were contending with a budget gap estimated at $125 billion. Brewer wanted to make up for almost half the state’s deficit by dumping 280,000 Arizonans from Medicaid coverage.

She sent a letter to Sebelius asking for a waiver in the new health-care law that requires the states to retain eligibility levels if they want to receive federal Medicaid money, according to The New York Times; other governors in both parties planned to follow suit. She wrote:

Please know that I understand fully the impacts of this rollback, and it is with a heavy heart that I make this request. However, I am left no other viable alternative.

Brewer wanted to unload 250,000 childless adults and 30,000 parents from Medicaid who were allowed eligibility as the result of a 2000 referendum. It was funded from cigarette levies and a tobacco lawsuit until 2004, when the general fund took up the slack, according to the Times.

Here was my recommended response from Sebelius, the mild-language version:

Jan, you talk about a heavy heart. You and your pals in Congress have hardened my heart. Democratic governors will get serious consideration for a waiver, but not any of you knotheads from Austin, Atlanta, Tallahassee or your beloved Phoenix. You might not have this problem if your cohorts in Congress had not obstructed a serious initiative to reform our health-care system. As my Democratic friends from the Bronx would say, waiver this! And give my best regards to Sen. McCain.

Rep. Allen B. West, a Republican, revealed serious mental-health issues when he sent Rep. Debbie Wasserman-Schultz a nasty personal note after she attacked his defense of a bill to reduce Medicare and other domestic spending on July 19, 2011. (Okay, so I’m not licensed to make m-h diagnoses; you judge).

The Fort Lauderdale Sun-Sentinel reported that Schultz, a Democrat, took to the House floor and said:

The gentleman from Florida, who represents thousands of Medicare beneficiaries, as do I, is supportive of this plan that would increase costs for Medicare beneficiaries — unbelievable from a member from south Florida.

West left the chamber immediately after his own speech, prompting Schultz’s rebuttal on the floor. He subsequently fired off this memo to Schultz and House leaders:

Look, Debbie, I understand that after I departed the House floor you directed your floor speech comments directly towards me. Let me make myself perfectly clear, you want a personal fight, I am happy to oblige. You are the most vile, unprofessional and despicable member of the U.S. House of Representatives. If you have something to say to me, stop being a coward and say it to my face, otherwise, shut the heck up. Focus on your own congressional district!

Actually, West focuses on a different congressional district. He lives in Schultz’s district, but represents an adjacent district covering parts of Broward and Palm Beach counties, though that’s a minor aspect.

In a fundraising letter, West wrote that Schultz “attacked me personally for supporting the legislation.” He has also griped about criticism for being a black conservative, sort of the Clarence Thomas of  Congress.

Schultz’s criticism of West on the House floor is known as “fair game.” Politicians habitually snipe at each other over policy issues. The grown-ups take it in stride, but West could not, well, take it.

Schultz was on target when she told The Miami Herald:

It’s not really surprising that he would crack under the pressure of having to defend that. If he feels that concerned and gets that churned up over having to defend his position then he probably should reconsider his position.

Hmm… Since when was she licensed to make mental-health diagnoses?

Tom DeLay offered these words of wisdom on Jan. 10, 2011:

This criminalization of politics is very dangerous, very dangerous to our system. It’s not enough to ruin your reputation. They have to put you in jail, bankrupt you, destroy your family.

“This criminalization of politics” did not disturb DeLay when he engineered the impeachment of Bill Clinton in 1998 because the president lied about…his sex life.

DeLay felt far differently about it when Travis County Court Judge Pat Priest in Austin sentenced him to three years in prison for money laundering and conspiracy — the result of his role in channeling corporate donations to Texas state races in 2002, according to the New York Times.

The evidence presented at the trial showed that DeLay and two associates routed $190,000 in corporate donations in 2002 to several Republican candidates for the state legislature, using the Republican National Committee as a conduit. Texas law bars corporations from contributing directly to political campaigns.

DeLay and his Republican friends pushed for Clinton’s impeachment on grounds that he lied in court about sexual activity with Monica Lewinsky, the White House intern. There were suggestions that Clinton’s denial did not constitute perjury. Clinton did nothing that affected his presidential duties. However anyone regards Clinton’s behavior, what’s the difference in terms of his job?

It was petty stuff, which is what DeLay claims about his conviction and sentencing. In fact, he charges that the Democratic district attorney was using the law to avenge his empowerment of Republicans.

DeLay was not using the power of impeachment to avenge Clinton’s empowerment of Democrats?

DeLay’s hypocrisy surfaced then, but his abuse of the Constitution’s impeachment clause was offensive.

Impeachment is briefly covered in Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery and other high Crimes and Misdemeanors

.

The framers of the Constitution had higher purposes for the impeachment clause than settling political scores. Now DeLay, who appealed his sentence, felt victimized by an unfair legal situation. Bad law or not, he was still convicted of violating it.

Next excerpt: To change policy, change the system

An illegitimate Congress? You betcha

Part 2 of American Vision by Bruce Ticker

The Republican leadership is asking its members to make a silly vote. — House Minority Leader Nancy Pelosi, April 1, 2011

Blame Congress.

Even more, blame the rules of the game that enable the Congress we have.

More after the jump.
Congress is hardly the only culprit responsible for bad government, but Capitol Hill is the starting point. The majority in Congress can declare war, or shift this power to the president; raise or cut taxes, especially for the rich; send troops…not to mention the National Guard…to fight Muslims in two unstable countries; and provide or deny our most vulnerable citizens housing, food, health care and quality education.

Congress can also violate the U.S. Constitution, as did 221 members of the House of Representatives via some bizarre legislation on April 1, 2011.

All 221 members ignored Article 1, Section 7, of the Constitution which was recited on the House floor on Jan. 6, 2011. All supporters of the bill in question were Republicans, the very ones who insisted that the Constitution and its 27 amendments be recited when Congress opened its 2011-12 session.

All Democrats and 15 Republicans voted against H.R. 1255. Rep. Louie Gohmert, a Texas Republican, said the bill “violates my conscience and the Constitution, and I cannot vote for it.”

Our system is not perfect, but the 221 representatives who voted for the bill cheapened our way of doing the people’s business.

H.R. 1255 required that a fiscal year 2011 spending bill, already passed by the House, would become law if the Senate would not pass a spending law by April 6.

There is a reason the bill never became law after that date – the Constitution, which requires that a bill can only become law after both houses pass a law and the president signs it, or the president refuses to sign and both houses override his veto by a two-thirds vote.

The provision reads, “Every bill which shall have passed The House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.”

In the less than genteel debates over the April 1 budget bill, The Hill newspaper quoted House Majority Leader Eric Cantor saying,

Funding the government at the levels passed by House Republicans might be what Senator Reid wants, but surely even he would agree that it’s a better alternative than shutting down the government.

Cantor, a Republican from the Richmond, Va., area, was referring to Senate Majority Leader Harry Reid of Nevada.

Some Democratic representatives recommended that Cantor and his flock read children’s books on the Constitution such as House Mouse, Senate Mouse, according to The Hill. Then-Rep. Anthony Weiner of Queens quipped, “It’s a much thinner book and it rhymes.”

House Minority Leader Nancy Pelosi of San Francisco invoked the most mature comment when she declared, “What you see on the floor today is no example of democracy in action. It’s silly. The Republican leadership is asking its members to make a silly vote.”


On the surface, Congress is representative government. After all, each of us can claim representation by one member of the House of Representatives and two members of the Senate, with the exception of those living in Washington and the U.S. territories.

Some Americans are represented better than others. In reality, Congress neither represents the majority of Americans nor adequately protects the rights of minorities. Congress is mainly hobbled by two inherent mechanisms and one of its own making.

First is the constitutional mandate for disproportionate representation in the Senate allowing each state equal clout – whether a senator represents 544,000 citizens or 36.9 million. Second is the stifling two-party system which thwarts meaningful participation of third parties and independent candidates in the political process. If more independents could get elected, is it possible that neither party could claim a majority in either chamber? The Senate’s composition is aggravated by the filibuster rule, which the Senate majority can revise or eliminate.

On May 30, 1787, the Virginia Plan was introduced to the Constitutional Convention in Philadelphia proposing a national government consisting of a legislature, executive and judiciary. The concept for a legislature subsequently materialized as two houses of Congress – each to represent American citizens on a proportionate basis. On June 9, New Jersey delegate William Paterson declared, “New Jersey will never confederate on the plan before the Committee. She would be swallowed up.”

Virginia was the most populous state at that time, followed by Pennsylvania. New Jersey was among the small states, yet now New Jersey outranks Virginia, respectively 11th and 12th in population. New Jersey was joined in opposition by delegates from Delaware, Maryland, Connecticut and New York, the latter of which is now our third most populous state. Despite Delaware’s current ranking of 45th, all five states are part of the northeastern bloc that traditionally adheres to moderate and liberal policies. Each is represented by centrist or liberal Democrats in the Senate.

On June 11, Roger Sherman of Connecticut proposed “that the proportion of suffrage in the first branch should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each state should have one vote and no more…As the states would remain possessed of certain individual rights, each state ought to be able to protect itself; otherwise a few large states will rule the rest.” Sherman revised his proposal on June 20 and was joined by fellow Connecticut delegates Oliver Ellsworth and William Samuel Johnson on June 29 in proposing a comparable plan, later to become known as the Connecticut Compromise.

“Too many – both among the large- and small-state delegations – were simply not in a mood to embrace compromise,” Richard Beeman writes in “Plain, Honest Men: The Making of the American Constitution.” “One by one, they rose to defend their ideas and, more importantly, the interests of their particular states.” The delegates ignored all three versions of the Connecticut plan until July 16, when they decided to split the composition of the two chambers. Members of the House of Representatives would each represent the same amount of constituents (that number now averages 720,000) and each state would be represented by the same number of senators.

Madison and four other delegates gathered the next morning, July 17, to discuss the July 16 decision. They found no takers to reconsider the Connecticut Compromise, which was formalized in Article 1 of the Constitution. Most delegates, displeased with the final product for varying reasons, signed the Constitution on Sept. 17, 1787, because their choice was to persist with the status quo or formalize the governing mechanism produced by the convention.

In the Federalist Papers, Madison argued for Section 3 of Article 1, which authorizes creation of a Senate with equal representation. The Constitution was ratified by 11 of the 13 states, and Congress as we know it today convened on Wall Street in lower Manhattan on March 4, 1789. George Washington was inaugurated as our first president on April 30, 1789.

Nine states were required to ratify the Constitution, made official by New Hampshire on June 21, 1788. North Carolina and Rhode Island made it unanimous soon after the government was formed.

Washington strenuously warned against the formation of political parties in his 1796 farewell address in part because “it is the customary weapon by which free governments are destroyed.” Political parties indeed emerged. After the Civil War, the political process settled into a pattern dominated by the Democratic and Republican parties.

In 2006 and 2008, voters upset with Republicans mainly had Democrats as an alternative. In 2010, Republicans benefited. Independent or third-party candidates typically divert votes from the more preferred party candidate.

The filibuster was rooted in Vice President Aaron Burr’s verbal critique of Senate rules. He singled out a Senate rule requiring the majority to cut off debate, and the Senate scrapped the rule in 1806 without replacing it. More than a century later, political pressures produced the filibuster in 1917, requiring a so-called super-majority to end debate. The filibuster carried debate to the extreme in which debate could clog up Senate business indefinitely.


A tsunami warning buoy

The upshot of these events is a dysfunctional system that in 2011 produced a possibly illegitimate Congress; cuts to a tsunami-warning system; and the criminal conviction of an impeachment leader.

The swearing-in for 433 House members of the 112th Congress was held on Wednesday afternoon, Jan. 5, 2011, as two other members – Michael Fitzpatrick of Bucks County, a Philadelphia suburb, and Pete Sessions of Dallas – attended a reception a few hundred yards away, in the Capitol Visitor Center, for more than 500 of Fitzpatrick’s constituents.

As Speaker of the House John A. Boehner administered the oath of office on the House floor, Sessions and Fitzpatrick watched Boehner on live television and recited the oath without leaving the reception, at 2:15 p.m. Predictably, House parliamentarians told them they must be officially sworn in, and Boehner administered the oath of office on Thursday.

Fitzpatrick said he thought that the Jan. 5 swearing-in would be held at 2:45, not 2:15. Any situation could arise that might prevent a member of Congress from attending the swearing-in.

Their failure to show up for the oath does not by itself jeopardize the operations of Congress. The act of casting votes for six legislative measures – before taking their oath of office – could be problematic.

Because two illegitimate congressmen cast votes, can these measures be legitimate?

If Sessions and Fitzpatrick paid attention when the Constitution was recited on Thursday morning, they would have been aware of Article VI, Clause 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

Sessions and Fitzpatrick violated Clause 3 when they voted to establish the rules of the House and a 5 percent reduction in congressional office allowances, according to The Washington Post. Their votes were stricken from the Congressional Record on Friday, but was that sufficient?

This fact remains: The House passed six measures in which two illegal votes were cast for each. That could make the entire package of bills illegal. Any one of these bills which, if they need to be ratified by the Senate and signed by the president, could be illegitimate because illegal votes were cast in the first place.

Sessions even chaired a committee meeting on Thursday.

They should have arranged to be sworn in before casting any votes. It takes plenty of gall to cast votes without abiding by the constitutional requirement to be “bound by Oath or Affirmation.” They should have known better. Sessions spent the previous 14 years in Congress and Fitzpatrick was first elected in 2004, defeated two years later and elected again the preceding November.

Their allies might argue that these measures would have passed without their votes, so it is okay to maintain the results. However, the initial inclusion of these votes could taint the end result.

Congress disregarded our constitutional principles. The House took legislative action that was not legitimate. The only way to make it legitimate is to wipe the slate clean and hold the votes and the committee meeting again.

The House not only violated the Constitution when it took on those six votes. The House persists in violating the Constitution so long as it refuses to straighten out its self-inflicted mess.

This is not parsing. The law is the law is the law. If our own Congress cannot abide by the law that binds it, then our system is automatically violated.

Next excerpt – Profiles in absurdity

Rabbis Call for Sensible Filibuster Reform

“There was a time when filibusters were symbolic of a principled stand…a David standing up to the Goliath. I think Strom Thurmond’s filibuster against the Civil Rights Act of 1957 took the sheen of nobility off the filibuster, but what constitutes a filibuster these days is not at all recognizable from the Mr. Smith or the Sen. Thurmond version. And it’s clear, looking at this graph that the Republicans have upended the intent of the filibuster rule to basically break down the Senate and launch the virtual rule of the minority.” — Nicole Belle

— Eric Harris and Jonathan Backer

“When the Senate rules create a status quo where justice is so frequently deferred or denied, the people start to lose faith in our democratic institutions, apathy is engendered, and the health of our democracy is threatened.”
— Rabbi David Saperstein

Rabbi Steven Fox, Chief Executive of the Central Conference of American Rabbis; Rabbi Ellen Weinberg Dreyfus, President of the Central Conference of American Rabbis; and Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism today released a letter urging Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) to enact sensible filibuster reform when the Senate convenes for a new Session on tomorrow.

The full text of the letter follows:

Dear Senator Reid and Senator McConnell,

On behalf of the 1,800 rabbis of the Central Conference of American Rabbis, the national Reform rabbinical association, we write to advocate sensible filibuster reforms.

During the 111th Congress, a challenge to the smooth functioning of democracy, which had been growing evident for some time, came into stark relief. A minority of Senators invoked cloture 63 times-the most of any other Congress, indeed, more than the sum total of instances between the creation of the modern filibuster at the beginning of the 20th century and 1982. Rather than facilitate a cautious and deliberate legislative process, the filibuster in its current incarnation has created gridlock and has weakened the government’s ability to respond to the needs of its citizens. In a Dec. 18 letter, 56 Democratic Senators called on you to take steps to curb this abuse of the filibuster. We are encouraged as well that a respected returning Republican Senator, Dan Coats, has also called for reform. We ask you to heed their call, and work together. Reform cannot succeed without bipartisan support.

Let us be clear: the filibuster is a vital and necessary tool of the minority.  The Central Conference of American Rabbis (CCAR) has consistently opposed attempts to eliminate the right of a minority of Senators to block extreme legislation and nominees. The CCAR has also supported efforts to reduce misuse of the procedural tactic when it occurs. During the 1950s and 1960s, a minority of legislators used the filibuster to prevent civil rights legislation from receiving a vote before the U.S. Senate. For this reason, the CCAR supported successful reform of Senate rules in 1975 to lower the threshold for cloture from a two-thirds to a three-fifths majority.

During the 111th Congress, the filibuster denied the DREAM Act an up or down vote in the Senate. The chamber never even debated legislation addressing climate change because of the mere threat of the filibuster. While many factors were at play, the filibuster or threat thereof diminished the Senate’s ability to respond to the needs of unemployed Americans struggling amid a prolonged jobs crisis, led to a health care reform law with fewer cost control mechanisms, and produced Wall Street reform with less ability to address the root causes of the financial meltdown.  Dozens of other important issues never came before Congress over the past two years because filibusters consumed so much of the Senate calendar. When the Senate rules create a status quo where justice is so frequently deferred or denied, the people start to lose faith in our democratic institutions, apathy is engendered, and the health of our democracy is threatened.

The ability of a truly dedicated minority to oppose the most extreme instances of legislative excess or of judicial or executive appointments must be preserved. But the current rules have evolved to a point where a 60-vote threshold in the Senate is the norm on important issues, not the exception. Some simple changes currently being considered have the potential to more effectively accomplish the goals the CCAR has long advocated.  That is, they could promote a more restrained and responsible use of the filibuster, while preserving minority rights in the Senate:

  • Continuous debate-a substantial number of senators should be required to sign a petition in order to initiate a filibuster and members should be forced to speak continuously in order to sustain it. The onus should also be on the minority to maintain a filibuster rather than just on the majority to break it.
  • Eliminating anonymous holds-the filibuster was designed to allow a minority to slow down the legislative process in order to make its case to the public. Anonymous holds accomplish only gridlock, allowing the minority to conceal itself behind a cloak of procedure without justifying its obstruction.
  • Fewer opportunities to filibuster-the minority currently has the ability to filibuster the initial motion to debate legislation, amendments, and the final vote. Duplicative filibusters clog the Senate calendar and prevent the legislative branch from doing the people’s work. The minority should get one opportunity to block a piece of legislation through procedural tactics.
  • Strengthen the right of the minority to offer amendments-supporters of the filibuster argue that it is a necessary tactic when the majority offers insufficient opportunities to offer amendments. But, currently, more amendments offer more opportunities for filibuster. Allowing each side to offer amendments with a limited amount of time for debating each would circumvent this problem and provide more opportunities for minority input.

We urge you to consider these and other ideas to limit abuse of the filibuster. The cause of social justice depends on a legislative branch that is responsive to the will of the people while mindful of minority rights. If you have any questions, please do not hesitate to contact us at 202-387-2800.

Sincerely,

  • Rabbi Steven Fox, Chief Executive, Central Conference of American Rabbis
  • Rabbi Ellen Weinberg Dreyfus, President, Central Conference of American Rabbis
  • Rabbi David Saperstein, Director, Religious Action Center of Reform Judaism

Did you know you can filibuster the House of Representatives too?

At least that is what former Congressman Pat Toomey thinks.

Here is what he said on CNN’s John King USA:

I opposed many of our spending bills. I personally led a filibuster on the House floor against my own party because I thought they were intending to bust the budget and spend too much money. So the record is very clear I have stood up to my party when I thought they were wrong.  

In reality, filibusters have been forbidden in the House of Representatives since 1842.

Watch the video, where Toomey claims he led a filibuster at the 5:30 mark:

Pat Toomey represented Pennsylvania’s 15th district (Allentown, Bethlehem, Northampton, Easton) from 1999 to 2005. In 2004, he challenged Specter for the Republican Senate nomination and lost. This year, Toomey is the Republican candidate for Senate and is running against Democrat Rep. Joe Sestak (D-PA 7).