Why the 'Silent' Filibuster Is Unconstitutional

[JBeukema]

In years past, real filibusters rarely happened since they required opposition senators to go to the effort of standing on their feet and speaking continuously for hours on end. Only the most intense and dedicated opposition would mount filibusters. But with the advent of the "silent" filibuster, which requires no effort (other than telling the Majority Leader that there are 41 members opposed to a bill), the number of "filibusters" has increased enormously. The practice of requiring a supermajority of 60 has now become routine.
The demise of majority rule in the Senate is a violation of the Founding Fathers' clear wishes and intent.
When it came to procedures, they believed that simple majorities, not supermajorities, should be the rule. This is demonstrated in Article 1, Section 5, of the Constitution which says that "a majority of each House shall constitute a quorum to do business."
During the Constitutional Convention, the Founding Fathers had considered supermajority quorums but rejected the idea. Federalist Paper No. 58 says that "in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed if quorums of more than a majority were required. It would be no longer the majority that would rule: the power would be transferred to the minority."
There is no difference in procedural effect between requiring a supermajority quorum and requiring supermajority approval to bring a matter to the floor.

Why the 'Silent' Filibuster Is Unconstitutional - David RePass - Politics - The Atlantic

 

[Revere]

The supermajority is not unconstitutional.

 

[RetiredGySgt]

Once again for the slow and stupid, The Constitution STATES that each house is free to set its own rules.

 

[Quantum Windbag]

In years past, real filibusters rarely happened since they required opposition senators to go to the effort of standing on their feet and speaking continuously for hours on end. Only the most intense and dedicated opposition would mount filibusters. But with the advent of the "silent" filibuster, which requires no effort (other than telling the Majority Leader that there are 41 members opposed to a bill), the number of "filibusters" has increased enormously. The practice of requiring a supermajority of 60 has now become routine.
The demise of majority rule in the Senate is a violation of the Founding Fathers' clear wishes and intent.
When it came to procedures, they believed that simple majorities, not supermajorities, should be the rule. This is demonstrated in Article 1, Section 5, of the Constitution which says that "a majority of each House shall constitute a quorum to do business."
During the Constitutional Convention, the Founding Fathers had considered supermajority quorums but rejected the idea. Federalist Paper No. 58 says that "in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed if quorums of more than a majority were required. It would be no longer the majority that would rule: the power would be transferred to the minority."
There is no difference in procedural effect between requiring a supermajority quorum and requiring supermajority approval to bring a matter to the floor.

Why the 'Silent' Filibuster Is Unconstitutional - David RePass - Politics - The Atlantic

Funny, I don't see anything there that makes it unconstitutional.

 

[thereisnospoon]

Filibustering is NOT unconstitutional. If it were, the SCOTUS would have heard a case then ruled in favor of this theory. Since that has not happened it isn't.
Senate dems stated they would attempt to end the "silent" filibuster.
This is typical politics. When a rule does not work in your favor, change the rule.
The dems are going to shoot themselves in the foot.
When the dems find themselves in deep minority status after 2012, they will wish they'd have kept their mouths shut.

 

[Quantum Windbag]

Filibustering is NOT unconstitutional. If it were, the SCOTUS would have heard a case then ruled in favor of this theory. Since that has not happened it isn't.
Senate dems stated they would attempt to end the "silent" filibuster.
This is typical politics. When a rule does not work in your favor, change the rule.
The dems are going to shoot themselves in the foot.
When the dems find themselves in deep minority status after 2012, they will wish they'd have kept their mouths shut.

The funniest thing is the silent filibuster was put in place to make it easier for the majority, not the minority. Filibuster rules require the majority to keep everyone there in case the minority Senators ever take a break so they can vote on cloture.

 

[Darkwind]

Everyone knows that a filibuster must come with much wailing and gnashing of teeth, otherwise, it is just plain boring.

 

[Agit8r]

Filibustering is NOT unconstitutional. If it were, the SCOTUS would have heard a case then ruled in favor of this theory. Since that has not happened it isn't.
Senate dems stated they would attempt to end the "silent" filibuster.
This is typical politics. When a rule does not work in your favor, change the rule.
The dems are going to shoot themselves in the foot.
When the dems find themselves in deep minority status after 2012, they will wish they'd have kept their mouths shut.

does that logic apply to EVERYTHING that is done unconstitutionally?

 

[loosecannon]

In years past, real filibusters rarely happened since they required opposition senators to go to the effort of standing on their feet and speaking continuously for hours on end. Only the most intense and dedicated opposition would mount filibusters. But with the advent of the "silent" filibuster, which requires no effort (other than telling the Majority Leader that there are 41 members opposed to a bill), the number of "filibusters" has increased enormously. The practice of requiring a supermajority of 60 has now become routine.
The demise of majority rule in the Senate is a violation of the Founding Fathers' clear wishes and intent.
When it came to procedures, they believed that simple majorities, not supermajorities, should be the rule. This is demonstrated in Article 1, Section 5, of the Constitution which says that "a majority of each House shall constitute a quorum to do business."
During the Constitutional Convention, the Founding Fathers had considered supermajority quorums but rejected the idea. Federalist Paper No. 58 says that "in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed if quorums of more than a majority were required. It would be no longer the majority that would rule: the power would be transferred to the minority."
There is no difference in procedural effect between requiring a supermajority quorum and requiring supermajority approval to bring a matter to the floor.

Why the 'Silent' Filibuster Is Unconstitutional - David RePass - Politics - The Atlantic

duh

 

[loosecannon]

The supermajority is not unconstitutional.

Your definition of "constitutional" reads: what I like is, what I don't like isn't.

You couldn't give a rats ass about the actual document.

 

[Revere]

The supermajority is not unconstitutional.

Your definition of "constitutional" reads: what I like is, what I don't like isn't.

You couldn't give a rats ass about the actual document.

The Constitution specifies that each house of congress make its own rules.

 

[loosecannon]

The supermajority is not unconstitutional.

Your definition of "constitutional" reads: what I like is, what I don't like isn't.

You couldn't give a rats ass about the actual document.

The Constitution specifies that each house of congress make its own rules.

without violating the constitution itself.

Get a fucking grip, lying partisan hypocrite.

If the democratically controlled house had voted in rules allowing them to order the murder of republican's children would that have worked for you?

If a split senate had voted on rules allowing them to impeach the minority party en masse would that have worked for you?

 

[Quantum Windbag]

Your definition of "constitutional" reads: what I like is, what I don't like isn't.

You couldn't give a rats ass about the actual document.

The Constitution specifies that each house of congress make its own rules.

without violating the constitution itself.

Get a fucking grip, lying partisan hypocrite.

If the democratically controlled house had voted in rules allowing them to order the murder of republican's children would that have worked for you?

If a split senate had voted on rules allowing them to impeach the minority party en masse would that have worked for you?

I used to think being consistent was a good thing.

 

[Care4all]

since the senate makes its own rules, it can constitutionally modify its rules and eliminate the SILENT filibuster, if they want to.....i'm fine with eliminating the SILENT filibuster....I think if legislation is important enough for the minority to filibuster, then they damn well need to present their arguments, on the floor of the senate, publically....no more 'hiding behind the curtain' seems like a good thing....

 

[Charles_Main]

Filibustering is NOT unconstitutional. If it were, the SCOTUS would have heard a case then ruled in favor of this theory. Since that has not happened it isn't.
Senate dems stated they would attempt to end the "silent" filibuster.
This is typical politics. When a rule does not work in your favor, change the rule.
The dems are going to shoot themselves in the foot.
When the dems find themselves in deep minority status after 2012, they will wish they'd have kept their mouths shut.

does that logic apply to EVERYTHING that is done unconstitutionally?

Um yes, if it is Unconstitutional it will eventually be ruled so by a Court. If that does not happen, you can probably count on the fact that it is indeed Constitutional.

As the Filibuster has been around for a long time, and has never been ruled Unconstitutional, Silent or not, You can bank on the fact that it is Constitutional.

I mean really, the Constitution allows both houses to set their own rules. If you have a problem with that, then try and amend the constitution, Don't try and get Activist judges to twist the existing law to try and make a long standing practice suddenly Unconstitutional.

I agree with the others who have noted this is going to Bite the Democrats in the ass. It is as if they did not even notice November. They are acting like they still have huge majorities in Both houses and all they need to do is get around the filibuster to ram through what ever they want. It is almost as if they don't realize they are in real danger of Losing The Senate in 2 Years (Dems have Several More Seats up for grabs then Republicans), And with the Massive over all shift to the Republicans, in State Governors and Houses, The Republicans are sure to Redistrict and make it very hard to the Democrats to have a chance to regain the House any time soon.

The Democrats are in danger of Taking away a tool they will sorely miss the Next time they are in the Minority in the Senate. A tool I for one Hope every Minority always has to check the Majority, Even when My side is the Majority.

 

[Care4all]

Filibustering is NOT unconstitutional. If it were, the SCOTUS would have heard a case then ruled in favor of this theory. Since that has not happened it isn't.
Senate dems stated they would attempt to end the "silent" filibuster.
This is typical politics. When a rule does not work in your favor, change the rule.
The dems are going to shoot themselves in the foot.
When the dems find themselves in deep minority status after 2012, they will wish they'd have kept their mouths shut.

does that logic apply to EVERYTHING that is done unconstitutionally?

Um yes, if it is Unconstitutional it will eventually be ruled so by a Court. If that does not happen, you can probably count on the fact that it is indeed Constitutional.

As the Filibuster has been around for a long time, and has never been ruled Unconstitutional, Silent or not, You can bank on the fact that it is Constitutional.

I mean really, the Constitution allows both houses to set their own rules. If you have a problem with that, then try and amend the constitution, Don't try and get Activist judges to twist the existing law to try and make a long standing practice suddenly Unconstitutional.

I agree with the others who have noted this is going to Bite the Democrats in the ass. It is as if they did not even notice November. They are acting like they still have huge majorities in Both houses and all they need to do is get around the filibuster to ram through what ever they want. It is almost as if they don't realize they are in real danger of Losing The Senate in 2 Years (Dems have Several More Seats up for grabs then Republicans), And with the Massive over all shift to the Republicans, in State Governors and Houses, The Republicans are sure to Redistrict and make it very hard to the Democrats to have a chance to regain the House any time soon.

The Democrats are in danger of Taking away a tool they will sorely miss the Next time they are in the Minority in the Senate. A tool I for one Hope every Minority always has to check the Majority, Even when My side is the Majority.

it will come back and bite the dems in the butt sooner or later, for certain!!

BUT WHO CARES?

IS it the right thing to do? I say ridding our Senate of the SILENT filibuster, is a GOOD thing....if the legislation is important enough to filibuster, then they should filibuster it on the FLOOR of the senate chamber and VOICE their issues and arguments, in Public....

i'm certain the founding fathers, would agree!

 

[Charles_Main]

does that logic apply to EVERYTHING that is done unconstitutionally?

Um yes, if it is Unconstitutional it will eventually be ruled so by a Court. If that does not happen, you can probably count on the fact that it is indeed Constitutional.

As the Filibuster has been around for a long time, and has never been ruled Unconstitutional, Silent or not, You can bank on the fact that it is Constitutional.

I mean really, the Constitution allows both houses to set their own rules. If you have a problem with that, then try and amend the constitution, Don't try and get Activist judges to twist the existing law to try and make a long standing practice suddenly Unconstitutional.

I agree with the others who have noted this is going to Bite the Democrats in the ass. It is as if they did not even notice November. They are acting like they still have huge majorities in Both houses and all they need to do is get around the filibuster to ram through what ever they want. It is almost as if they don't realize they are in real danger of Losing The Senate in 2 Years (Dems have Several More Seats up for grabs then Republicans), And with the Massive over all shift to the Republicans, in State Governors and Houses, The Republicans are sure to Redistrict and make it very hard to the Democrats to have a chance to regain the House any time soon.

The Democrats are in danger of Taking away a tool they will sorely miss the Next time they are in the Minority in the Senate. A tool I for one Hope every Minority always has to check the Majority, Even when My side is the Majority.

it will come back and bite the dems in the butt sooner or later, for certain!!

BUT WHO CARES?

IS it the right thing to do? I say ridding our Senate of the SILENT filibuster, is a GOOD thing....if the legislation is important enough to filibuster, then they should filibuster it on the FLOOR of the senate chamber and VOICE their issues and arguments, in Public....

i'm certain the founding fathers, would agree!

If the Senate wants to Get rid of the Silent Filibuster I am all for it as well. I am with you on that one. I think they should have to Talk the whole time. I just was responding to those who seem to think the Filibuster itself should be Ruled Unconstitutional, or that it is.

 

[Avatar4321]

I find it completely ironic that when Republicans tried to do something similiar years ago the Democrats were up in arms.

Change the Rules. Go ahead. The Fillibuster should be restored to it's proper place. Maybe next we can repeal that stupid amendment and return the Senate back to the States where it belongs.