"Among its other infamies, the filibuster is blatantly unconstitutional" (Hendrik Hertzberg)

"The filibuster historically has been used selectively for a handful of issues to extend debate, but we don't have a sixty-vote rule. And yet, that's become common practice. And this is just the latest example."

-- President Obama, last week, on the GOP filibuster that
prevented a vote on the Hagel SecDef nomination

"Among its other infamies, the filibuster is blatantly unconstitutional. There's really no room for doubt on this."

-- Hendrik Hertzberg, in the newyorker.com blogpost
"The Filibuster: Obama Lets It All Hangout"

by Ken

Last night, in writing about Texas Sen. "Crazy Ted" Cruz's proud self-declaration as a dimwit, scumbag, and liar, I referred more casually than I would have wished to his joining in "the congressional Republican labor of overthrowing the government, at least in its constitutional form." And I realized that I hadn't gotten around to writing about a point that The New Yorker's Hendrik Hertzberg made in a blogpost last week, an amplification of his Comment piece in the February 25 issue, "State of the (G.O.P.) Union."

He had concluded that piece:

What still holds the [Republican] Party together is its implacable opposition to Obama and all he stands for -- and the apparent willingness of its congressional cohort to thwart him by any means, fair or (more often) foul. At the emotional climax of his address, the President repeatedly called on Congress to bring his gun-control proposals to a vote. He wasn't even asking that they be passed. ("If you want to vote no, that's your choice.") He was simply asking -- demanding? begging? -- that they at least be considered in what was once, with very rare exceptions, the customary manner. He was also preparing the public for the likelihood that the gun-control proposals -- and, by extension, the rest of his legislative recommendations -- will be gutted or simply buried. In the Senate, the Republican minority wields the filibuster with unprecedented frequency and ferocity. At the other end of the Capitol, the Republican Speaker almost always keeps from the floor any measure disfavored by a majority of his caucus, even if a majority of the House itself supports it. Last Thursday, Republicans prevented a vote on the confirmation of Obama's nominee to oversee the Pentagon, the war hero and former Republican senator Chuck Hagel, and the President finally made his frustration explicit. "We've never had a Secretary of Defense filibustered before. There's nothing in the Constitution that says that somebody should get sixty votes," he said. "The Republican minority in the Senate seems to think that the rule now is that you have to have sixty votes for everything. Well, that's not the rule." But it's the power, as naked as Bush in the bathtub and a lot more indecent.

In the subsequent blogpost, "The Filibuster: Obama Lets It All Hangout," he noted that in the "Comment" piece he had quoted "a line or two" from President Obama's comment on the Senate Republican minority's outrageous filibuster of the move to proceed with the nomination of former Sen. Chuck Hagel to be secretary of defense, and ventured that "his entire answer is worth a look, and offered a transcription by a New Yorker staffer. You can read the whole thing onsite, I'm just going to quote the portion that most directly engaged Hendrik:

The notion that we would see an unprecedented filibuster, just about unprecedented -- we've never had a Secretary of Defense filibustered before. There's nothing in the Constitution that says that somebody should get sixty votes. There are only a handful of instances in which there's been any kind of filibuster of anybody for a cabinet position in our history. And what seems to be happening -- and this has been growing over time -- is that the Republican minority in the Senate seems to think that the rule now is that you have to have sixty votes for everything. Well, that's not the rule. The rule is that you're supposed to have a majority of the hundred senators vote on most bills. The filibuster historically has been used selectively for a handful of issues to extend debate, but we don't have a sixty-vote rule. And yet, that's become common practice. And this is just the latest example. We've seen it on judges. We've seen it on Deputy Treasury Secretaries. And part of what's happening is it's become more and more difficult for people to join our government.

The boldfacing, by the way, is Hendrik's. He writes: "I'm especially glad to hear our constitutional-law professor of a President make the first point I've bolded above." Aha, clearly the president touched a nerve here!

Among its other infamies, the filibuster is blatantly unconstitutional. There's really no room for doubt on this. The framers quite consciously rejected the idea of requiring congressional supermajorities for any purposes beyond the five they specifically enumerated: in the House, for impeaching the President; in the Senate, for ratifying treaties; in both, for expelling members, overriding a Presidential veto, and amending the Constitution.

The Federalist Papers are absolutely clear on the question of requiring more than a simple majority for any other congressional business. It's a lousy idea, Hamilton thought. Why? Because, he writes in Federalist No. 22,

its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.

An insignificant, turbulent, or corrupt junto: not a bad description of the Senate Republican caucus in the era of Inhofe and Cruz -- except, unfortunately, for the "insignificant" part.

In No. 58, Madison was on the same page:

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. It would be no longer the majority that would rule: the power would be transferred to the minority.

It doesn't matter if you're an "original intent" guy, a "living Constitution" gal, or a "plain language" purist: routine supermajorities are a big fat no-no.

WHAT ABOUT THE SECOND BOLDFACED SENTENCE?

Says Hendrik, "[T]he President may (or may not) have gotten it a little wrong in the other sentence I bolded. It depends on what he meant by 'you're supposed to have a majority of the hundred senators vote on most bills.'

If he meant that the Senate (and the House) can't vote on a bill unless at least half the members are in the room (Article I, Section 5: "a Majority of each [house] shall constitute a Quorum to do Business"), then he got it right. But if he meant that, under the Constitution, the Senate can't pass a bill unless a majority of the entire membership, fifty-one Senators, vote for it, then he, well, misspoke.

Our Hendrik isn't finished with the quorum clause, though. It is, he says,

the nail in the filibuster's Constitutional coffin. In today's Senate, a quorum "to do Business" is fifty-one Senators. If voting on a bill is Business, as it obviously is, then voting to end debate on that bill and proceed to a vote on the bill itself is Business, too. If fifty-one Senators are present to vote on a measure, then all it takes to pass it is for twenty-six of the fifty-one to vote for it.

Senate Rule XXII, which purports to require a minimum of sixty Senators to vote not just on ending a filibuster but for ending one, is worse than unconstitutional. It is a grotesque logical absurdity, an offense to human reason.

Strong stuff. "Worse than unconstitutional." "A grotesque logical absurdity." "An offense to human reason." And there you have it, ladies and gents: your Republican Party, A.D. 2013.

And it sure seems like they couldn't be prouder.

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