Red White & Blue Hens

College students in Delaware who think right is right, and left is wrong. We study hard, party hard, and play hardball.

Friday, April 22, 2005

Fillibuster Fickleness

Another nugget of political gold dug up by our friends at Best of the Web (

Sean Rushton of the Committee for Justice, a group that favors the confirmation of President Bush's "constitutionalist judicial nominees," offers some interesting history over at National Review Online. In January 1995, by a vote of 76-19, the Senate rejected a proposal by Sen. Tom Harkin that would "permit cloture to be invoked by a decreasing majority vote of Senators down to a majority of all Senators duly chosen and sworn." This would have effectively done away with the filibuster--not just for judicial nominees but for all purposes.

Among the senators who favored the proposal (voting "no" on the motion to table it) were nine who still sit, several of whom are now among the most vigorous filibuster defenders: Harkin plus Jeff Bingaman, Barbara Boxer, Russ Feingold, Ted Kennedy, John Kerry, Frank Lautenberg, Joe Lieberman and Paul Sarbanes. It's hard to take seriously their protestations that the Republicans' far narrower proposal to abolish the filibuster for judicial nominees only amounts to some sort of assault on America's system of checks and balances.

Rushton further notes that there are a variety of limits on the filibuster already in place. Among them:

You cannot filibuster a federal budget resolution (Congressional Budget and Impoundment Control Act of 1974).

You cannot filibuster a resolution authorizing the use of force (War Powers Resolution).

You cannot filibuster international trade agreements (Bipartisan Trade Promotion Authority Act of 2002).

And as the minority leader, Sen. Harry Reid (D., Nev.), well knows, you cannot filibuster legislation under the Nuclear Waste Policy Act of 1982.
There's even an argument that the filibuster is unconstitutional. Rushton calls our attention to U.S. v. Ballin, an 1892 ruling in which the Supreme Court held that a House vote of 138-3 was sufficient to enact a law, even though 189 members didn't vote. Justice David Brewer wrote for a unanimous court:

The general rule of all parliamentary bodies is that, when a quorum is present, the act of a 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 the 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.

As we noted last week, some liberal commentators have urged Senate Democrats to call the GOP's bluff and revert to the old Harkin proposal of abolishing filibusters altogether, which would (these commentators argue) make it easier in the long run to pass liberal legislation. Unlike the current defense of the status quo for expedience' sake, this would amount to a principled position.


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