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How The Filibuster Happened By Accident [Handcuffs On The Constitution, Part 2]

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Headlined to H3 12/3/12

Handcuffs on the Constitution by The People Lobby

This is the second installment of our mini-series on how the filibuster broke our government. Today we focus on why the filibuster is so contrary to the Constitution.  Please submit the action page, which has over 17,000 submissions already.

Stop The Filibuster action page:
And for those active on Facebook, use the new page for The People Lobby to light a fire on this issue in the Facebook world.  

The People Lobby on Facebook: 

In configuring the institution of the Senate, our Constitution specifies that a bill that "passes" the Senate (and of course the House of Representatives as well) is then "presented" to the President for signature (Article 1, Section 7). That our founding fathers meant by "passage" a simple majority is not even a debatable point for multiple reasons.

This is clear, in the first instance, from contemporary usage of the word "pass", meaning by simple majority, as the general rule of all other parliamentary bodies, and in dictionary definitions, at the time. 

Second, at the birth of the Constitution this was expressly debated, and the idea of a requiring a supermajority to conduct ordinary congressional business was rejected. For example, George Mason of Virginia and others objected to the provision of "a simple majority of a quorum of the House or Senate to pass legislation that would bind the entire country." Both but Alexander Hamilton and James Madison responded to these objections in The Federalist No. 22 (Hamilton), No. 58 (Madison) and No. 75 (Hamilton), by arguing that this would subject the general business of government to a "junta" of the minority, and their views prevailed.

Third, the Constitution does specify a number of exceptions for the most severe matters, for example, impeachment in the Senate, the override of presidential vetos, etc., that would require some kind of supermajority. By itemizing these exceptions, this reinforces the argument that only a simple majority should be required in cases not so specified.

Fourth, there is a provision for the Vice-President to cast a vote to break any tie vote in the Senate (Constitution, Article 1, Section 3). This could only have meaning if votes were to be taken by simple majority, for otherwise there could be no tie.

This same section of the Constitution also provides that each Senator should have one vote. But under the current tyranny of the minority imposed by the Republican party, where EVERY point not unilaterally surrendered to them is filibustered, there can be no vote at all without at least 60 votes (out of 100) to permit consideration. This means that each affirmative vote has been reduced in practice to 83.3% of a vote. It's as if handcuffs had been placed on the Constitution.

Common Cause filed a lawsuit earlier this year in federal district court in Washington, asking the court to intervene in this matter, and to declare the filibuster unconstitutional for all the reasons above, and a hearing on the opposing motion to dismiss will be heard the beginning of next week on Monday, Dec. 10th. We have carefully reviewed the briefs on both sides, and believe that while Common Cause has a compelling case on the merits, it may be not be easy to get a federal judge to intervene in Senate procedural matters.

Still it would be interested to follow this case, and so if you are in the Washington, DC, area, and would be interested in attending the hearing as a member of the public, to take notes and report back to the rest of us how the hearing went, please speak up and volunteer. In fact, the more the merrier.

In the meantime, we must operate on the assumption that the positive change we must have can only result from sufficient political pressure, so it is critical to keep building the action page submissions and participation on this page into a meaningful political force. We cannot depend on the courts to save us. We the People must be prepared to shoulder the burden of fixing this all by ourselves.


The Pen is a real person, and the founder of The People's Email Network, a resource founded in 2004 with the mission of making sending policy advocacy messages as facile and easy as possible. With this goal in mind we pioneered one click action (more...)
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