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Washington Post Promoting Misleading Filibuster Arguments
Posted by Brian Darling
Tuesday, May 15th 

Today Ezra Klein at the Washington Post put out a piece promoting Common Cause’s lawsuit to have the Senate filibuster declared unconstitutional.  Klein repeats myth after myth about the filibuster.  This piece should commence an interesting national debate finally putting the argument to bed that the filibuster is somehow unconstitutional.  Abolition of the filibuster will lead to a Senate with less time for debate and limited transparency for the American people. 

It is interesting to note that these short sighted leftists may be laying the table for an easy repeal of ObamaCare, Dodd-Frank and extending the Bush tax cuts.  Clearly, Republicans control of the Senate is within reach (see RCP analysis of Senate polls).  There is also a 50-50 chance that Republicans win the presidency.  Liberals are trying to get rid of the one tool they would have to stop Republicans from dismantling the Obama legacy of higher taxes and more regulation. 

I have to imagine that some Republicans will want to take liberals up on the offer of ridding the Senate of the filibuster in January of 2013. 

First of all, many of the voices on the left are hypocrites.  Many of the same groups calling for filibuster reform, were defending the filibuster in 2005.  When it served the purpose of obstructing President Bush’s agenda in 2005, they were 100% for the filibuster (see here).

It is ironic that Common Cause is fighting for filibuster reform.  In 2005 they were singing a different tune. 

Jonathan H. Adler at The Volokh Conspiracy writes in a post titled, Common Cause’s Filibuster Flip: 

In 2005, Common Cause vigorously defended the filibuster when some Republicans proposed invoking the “nuclear option” to end the filibuster of judicial nominees.  From a 2005 press release: Common Cause strongly opposes any effort by Senate leaders to outlaw filibusters of judicial nominees to silence a vigorous debate about the qualifications of these nominees, short-circuiting the Senate’s historic role in the nomination approval process. “The filibuster shouldn’t be jettisoned simply because it’s inconvenient to the majority party’s goals,” said Common Cause President Chellie Pingree. “That’s abuse of power.” (Hat tip: Don Surber) 

Now it seems that Common Cause supports the “abuse of power.”   I did a Google search to find the text of a Common Cause press release titled “Filibuster shouldn’t be tossed aside to convenience Senate majority” and it has been taken off the web site. 

Also, it is a convenient myth for Klein and opponents of the filibuster to argue that “the filibuster was a mistake.” History does not prove this assertion to be true. 

John Quincy Adams wrote in his memoir that the early Senate rejected a rules change that would have limited debate, because in 1806 Vice President Aaron Burr argued that a rules change was not necessary to end debate on a question.  According to the late Senator Robert C. Byrd’s in The Senate, 1789–1989, “Henry Clay, in 1841, proposed the introduction of the ‘previous question’ but abandoned the idea in the face of opposition.”  Byrd also noted that “when Senator Stephen Douglas proposed permitting the use of the ‘previous question’ in 1850, the idea encountered substantial opposition and was dropped.” According to Byrd, “An effort to reinstitute the ‘previous question,’ on March 19, 1873, failed by a vote of 25–30.” Byrd cited the following: “Between 1884 and 1890, fifteen different resolutions were offered to amend the rules regarding limitations of debate, all of which failed of adoption.” This is evidence that the filibuster was not an accident of history, yet it was an accepted practice that was validated by Senate votes. 

James Madison wrote in Notes of Debates in the Federal Convention of 1787 that one of the purposes of the Senate was to protect the people against the temporary feelings Members of Congress may posses. 

In order to judge of the form to be given to [the Senate], it will be proper to take a view of the ends to be served by it. These were first to protect the people against their rulers: secondly to protect the people against the transient impressions into which they themselves might be led. 

Finally, the Constitution specifically delegates rule making authority to the House and Senate in Article I, Section 5, “each house may determine the rule of its proceedings.”  The filibuster is constitutional and the federal courts have no jurisdiction to litigate this political question. 

To argue that supermajority votes are unconstitutional, is to ignore the many supermajority rules  as part of the statutory budget process, explicit rules of the Senate and tradition.  Today, the Senate will hold a series of votes on legislation to extend the life of the Export-Import Bank, and amendments to the legislation, with a 60 supermajority required to pass as agreed to by both parties.  This practice is commonplace in today’s Senate. 

The Senate and House frequently have votes on matters that are subject to supermajority votes.  In the House, a suspension of the rule vote is a supermajority vote.  In the Senate there are 60 vote points of order, suspension of the rules and a supermajority to shut off debate are a weekly occurrence. 

The big question is whether this full court press by the left is merely setting up a liberal talking point that Republicans are obstructionists or if this is a serious effort to set the table for changing the filibuster rule. 

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