The Filibuster, Supermajority and the Constitution

Ezra Klein has published an engaging series of interviews regarding the filibuster, and the prospects and shape of reform for the Senate’s much maligned rule of procedure. The prospects for reform don’t look particularly bright. And as we come to reckon with one of the final products of the filibuster floor, the Senate’s health reform bill, we may want to take a moment to consider the filibuster itself– this need for 60 votes.

Klein writes:

According to UCLA political scientist Barbara Sinclair, about 8 percent of major bills faced a filibuster in the 1960s. This decade, that jumped to 70 percent. The problem with the minority party continually making the majority party fail, of course, is that it means neither party can ever successfully govern the country.

It should also be noted that unlike today, a filibuster in the early 60’s required the arduous (and, it would seem, daunting physical task of continued speech and an inability to consider other legislation during the pendency of the filibuster. A set of circumstances which at times brought sleeping cots onto the Senate floor and may have served to limit the filibuster’s use.

The Health Reform bill has served to highlight the dysfunction of the filibuster in modernity. The filibuster is not enshrined in the Constitution, it is merely a rule of the Senate.

The United States Senate requires a supermajority of three-fifths to move to a vote through a cloture motion, which closes debate on a bill or nomination, thus ending a filibuster by a minority of members. In current practice, the mere threat of a filibuster prevents passing almost any measure that has less than three-fifths agreement in the Senate. Since there are 100 members, three-fifths is sixty Senators.

The need for a supermajority is not unknown to the Constitution, but to say it is used sparingly and for matters of great import is not to engage in hyperbole. A quick glance at the Great Document bears this out. The original Constitution contains only five instances which require a supermajority; the Amendments two. A supermajority of two-thirds of both houses of Congress is required for Congress to propose a constitutional amendment and to pass a bill over a presidential veto; two-thirds concurrence of all members of the Senate present is necessary to convict under Impeachment; two-thirds concurrence of all members of the Senate present is requisite to consent to a treaty. The Constitution also requires the concurrence of two-thirds of the Senate to “expel a member.” The Fourteenth Amendment forbids those who formerly held office, either civil or military, and had engaged in “insurrection or rebellion” from holding any office–either civil or military– unless two-thirds of both the House and Senate  acted to “remove such disability.”  The Twenty-Fifth Amendment requires a two-thirds majority of each house to determine that an Acting President “is unable to discharge the powers and duties of his office.”

Constitutional amendment, over-ride a presidential veto, convict under impeachment, expel a member, ratify a treaty, remove a punishment for rebellion, and judge a president incompetent. These are fairly characterized as “exceptional situations,” not the everyday stuff of a legislature doing business. But because of the Senate’s filibuster rules, the need for a supermajority of 60 has become a part of the everyday stuff of a legislature attempting to do business.

Under Article 1, Section 5 [2] “Each House may determine the Rules of its Proceedings….” And the filibuster is very much a rule of the Senate’s proceedings. But at a certain point, the procedural rule can be said to have overtaken the substantive– I would suggest we begin considering whether or not we are at that point.

In U S v. BALLIN, 144 U.S. 1 (1892) the Supreme Court looked at the rule making power of Congress and had this to say:

The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

There are at least a few things to consider in this regard. Perhaps foremost is the ability of the Senate to change the filibuster rule (”The power to make rules is not one which once exercised is exhausted.”). Also, it may well be a stretch, but I find it interesting nonetheless: does the present form and practice of the filibuster (a defacto supermajority requirement for the passage of legislation in the Senate) “ignore constitutional restraints or violate fundamental rights?” (i.e., does it, as described in INS v. Chadha, offend the “framers’ decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” (See also Powell v. McCormack, where the Supreme Court ruled unconstitutional  a House resolution to not permit the duly elected Adam Clayton Powell, Jr. to take his seat in the House of Representatives (”Moreover, it would effectively nullify the [Constitutional] Convention’s decision to require a two-thirds vote for expulsion.”).

Which is to say, in this matter, does the filibuster, as practiced currently, effectively nullify the simple majoritarian requirement for the passage of legislation in the Senate? Of course, the Constitution lacks an explicit textual commitment to majority rule. But the argument in favor of majority rule is a powerful one, hinged upon that venerable canon of statutory construction, expressio unius est exclusio alterius, ‘the expression of the one is the exclusion of the other.’ Which is to say, that by listing these five supermajority exceptions in the original constitution that I have listed above, the drafters made simple majority in all other cases the default position. To appreciate the power of this argument (and this canon of construction) on need not look any further than the Bill of Rights. Madison balked mightily at the proposal for a Bill of Rights as being “dangerous” because the act of listing certain rights  would, under black letter principle, ‘the expression of the one is the exclusion of the other,’ negate the existence of others. The solution to Madison’s fear– the anti-expressio unius est exclusio alterius– is contained in the Ninth Amendment:

“The enumeration in the Constitution, in certain rights, shall not be construed to deny or disparage others retained by the people.”

The textual analysis regarding majority and supermajority goes something like this: Article II, Section 2 [2] regarding the powers of the President reads

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…. (emphasis added)

The presence of the requirement that two-thirds of the Senators concur in the ratification of a treaty, shows that when the drafters wanted to provide for a supermajority requirement they knew how; that they failed to include the clause requiring a two thirds majority appointment for “Ambassadors… and judges of the supreme Court” is strong evidence that they did not want to as it regards “Ambassadors… and judges of the supreme Court.” Furthermore, had they not provided for a two-thirds supermajority for treaties, one might argue that a supermajority applied to Treaties and Ambassadors and supreme Court judges– as the question may have remained open. But by expressing the requirement in the one instance (”Treaties”), they excluded, or closed the door on, the others (”Ambassadors… and supreme Court judges”).

Similarly, the various (but few) provisions scattered throughout the Constitution  show that the drafters knew how to create a supermajority requirement when they wanted to, and by virtue of simply being, these supermajority requirements show themselves to be exceptions to the unstated rule. In this case, the unstated rule being that a simple majority is necessary for the passage of legislation.

In addition, it should be noted that the Constitution gives a vote to the Vice-President only in instances where the Senate is “equally divided.” The presumption of course is that in doing so it will allow the Vice-President to break the tie and, by a one vote majority, allow for the legislation to either pass or fail. Importantly,  an “equally divided” Senate is rendered meaningless in the light of  a supermajority requirement.

The argument in favor of the 60 vote requirement to invoke cloture and end a flilibuster largely rests upon the premise that the Constitution grants to the Senate plenary power under Article 1, Section 5 [2] “Each House may determine the Rules of its Proceedings….” That within that clause lay the ability to proscribe the numerical meaning of the requirements for Senate procedure. But what happens when the rule of procedure swallows the law?

One might also ask if there is a constitutional argument that can be made if one can point to the concrete harm in a particular bill effectuated? Not effectuated? (But See Raines v. Byrd (1997) for the standing difficulties for Federal Senators bringing a claim against diminishment of Congressional power wrought by the Presidential line item veto, dismissed on standing grounds by the Supreme Court and characterized as “a type of institutional injury which damages all Members of Congress equally.” But, importantly, especially considering the disparate financial impact on states regarding Medicaid funding in the Senate bill, See Clinton v. New York (1998), where the state of New York did have standing and successfully challenged the same presidential line item veto after the use of the same resulted in the loss of $955 million to New York for the payment of expenses related to the medical care for the indigent).

The balance of power in Congress between large and small states was hotly contested at the Constitutional Convention. The compromise, in which members of the House of Representatives would be apportioned through population and members of the Senate would be limited to a flat two members per state, could certainly be characterized, like the process of legislation itself, as being a “single, finely wrought and exhaustively considered, procedure.” So much so in fact that the compromise which gave birth to the form of the Senate and its particularized distribution of power is, in a sense, a distinct creature within the Constitution. An anomaly, if you will. When Alabama attempted to implement such a plan in 1964, patterned closely after the Federal Legislature, for the configuration of its State Legislature, it was deemed unconstitutional as repugnant to the Equal Protection clause. The Court in Reynolds v. Sims, 379 U.S. 870 (1964) stated:

“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”

The Court distinguished the federal construct of the Senate as “ingrained in our Constitution as part of the law of the land” and “conceived out of compromise and concession indispensable to the establishment of our federal republic. Arising from unique historical circumstances….”

In the Free Exercise of religion case,  Employment Division v.  Smith, 497 U.S. 872 (1990), Justice Scalia speaks of the increased weight and power of “hybrid” rights–rights in which the Free Exercise clause is coupled with other constitutional protections “such as freedom of speech or  the press.” What then is the result of a Constitutional scheme that outside of the Constitution is actually repugnant to a fundamental right?   Considering the offensiveness of the scheme to the Equal Protection Clause, at least when applied to putative state action to effectuate such a scheme, one wonders if a tighter leash isn’t appropriate? Perhaps somewhat akin to the strict adherence we require of “granfathered” zoning usages? This may be a bit afield, but so also may be a Senate rule which de facto requires a supermajority to pass legislation.

It is also worth noting that the Constitution jealously protects a state’s stake in the power of a Federal Senate seat. It protects the legislative power of states in the federal government by forbidding the creation of new states “formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” (Article IV, Section 3, Clause 1).

The fear addressed being that a state such as New York could create within it’s borders– or with the help of a bordering state– “New York. West,” thereby increasing its number of Senators by 2 (and if the population of the newly created state was less than 30,000, a House member as well). In doing so, a state such as New York could thereby increase its own senatorial power and diminish the senatorial power of the other states. The Senate, particularly, is a zero sum game. But the clause in Article IV, importantly, essentially prohibits the diminishment of a state’s Congressional power–especially senatorial power–by forbidding an action which would do so– unless Congress, both the Senate and House, agree. One could argue that the filibuster as practiced accomplishes a similar diminishment of  senatorial power–but does so without the consent of the House (or, for that matter, the State Legislators).

And the point is this:

“According to UCLA political scientist Barbara Sinclair, about 8 percent of major bills faced a filibuster in the 1960s. This decade, that jumped to 70 percent.”

I loved “Mr. Smith Goes to Washington” as much as the next fellow; but this isn’t that. And although I’m not saying that the filibuster, as presently configured, is unconstitutional, I am saying that we may seriously wish to begin looking to the Constitution to formulate answers regarding the modern problem of the filibuster. The Constitution is not a suicide pact, but the Senate rules may be.

Michael Ricciardelli, J.D., is the Managing Editor of Health Reform Watch. He is a recent graduate of Seton Hall University School of Law, which he attended as a Distinguished Public Interest Scholar. At Seton Hall Law, he was honored as a recipient of the Michael P. Ambrosio Masters in Jurisprudence Award. He is a Senior Fellow of the Center for Policy & Research and a recipient of Seton Hall Law’s Guantanamo Award and the American Constitutional Society’s William Paterson Award for his work regarding Guantanamo Bay Detainees. He is a co-author of Captured on Tape, Interrogation and Videotaping of Detainees in Guantanamo which was published in media sources throughout the world and formed a basis for Senator Ted Kennedy’s demand for the cessation of the further destruction of tapes. He graduated from Drew University with a B.A. in English in 1991 and has published poems in a number of literary magazines.

20 replies »

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  4. 3/22/2010
    I had to wait for this Bill to be passed in order to show the Republican Party and GOP and FRC Action that it is the voice of the people that guides the destiny of this Country.
    As predicted , the first stages of the Health Care Bill was passed. Why, you ask ? It is because people wish to be seen for their in put of a view and not unite. What is lost is respect with in a concept of { Freedom Of Choice } to be a part of this system or not, with in this Health Care Force Pay Matrix.
    What is offered by FASC Concepts is the Freedom Of Choice, because we feel it is unconstitutional to force pay into the failures of Health Care Insurance Companies and then Tax that money. As you can see our elected officials are paying little attention to the public. As I reach out to my computer and I knock , knock, knock on the screen, and I say is there any body out there?
    This Health Care issue keeps taking turns and twist that bewilder the mind in thoughts. This $100 trillion dollar system ,as it would seem, I am counting up to $ 8 trillion 682 billion Dollars so far. One guy emailed me and he is up to $27 Trillion dollars.
    You see when Harry Reid added a extra ….almost, $2 Trillion dollars in a tax forum, this through my numbers off with the 1 to 3 year spread of taxes.
    Lets show you this way seeing how I run out of fingers to count on and I do not feel like taking my shoes off…..
    to get a $4 Trillion dollar tax spread, it is based at a 0.25% up to 4 years.
    To be able to see the amount taxed in one year as a whole at 50% is around $8.2 Trillion to $8.8 Trillion, please remember according to Government Officials this is to be a spread tax, 3 to 10 years.. There is over 10 thousand companies I have not even got to yet. So lets take this $ 8 trillion 682 billion Dollars and forget about the other figures, reach into your mind and say ,1 to 3 to 10 years Tax against the Health Care System, then take this 10% tax against the almost $4 Trillion Dollars, your factor must be a multiplication. Then you will see this Tax factor as net value of that system. But of course Government Officials will not show the a net value of a system or that one company, this wold make it to easy for the People to follow the Tax Dollar.
    Remember this tax dollar does not include the split petition of the tax forum of increases in other areas, in the name of Health Care Reform. This tax forum I, or we can have very little effect against.
    As for theses hidden taxes, they are not hidden. They are built into a split petition. They are meant not to be seen, only revealed as the Progressive Capital Tax Forum works the system in order to not over burden the money system. What is lost is trust because Government Officials by considering the public slow witted and as for this Bill, I want to read the Law that is to represent the Bill. This is because one word has a directive and a code and a sentence can lead to a different truth in concept.
    So now it begins, the Civil Rights Law Suits and Constitutional Suits. We are not talking just a few law suits we are talking thousands will be filed because of the Freedom Of Choice is taken away and a Tax against money that is not Government Officials Rights to Tax, the Health Care Money for Coverage.
    Within our web site we suggested to build a Government Web Site that will show the People the monthly income of this Health Care Dollar and what the dollar is used for. But of Course this can not be allowed this would audit the IRS and Government System.
    So, what do you wish to do ? Sit back and complain or unite your voice as one and state that ,{ We believe in the Freedom Of Choice to be a Part Of this Health Care System or not. } We intend to give life to hope to where there is none.
    FASC Concepts in and for Pay It Forward. Join the trickle effect and email President Obama …..
    Our goal is to start a trickle effect and the goal is President Obama and this Bill to Law. To merge 250 million veiws for a honest Health Care reform. The trickle effect is , Email President Barack Obama
    Mar 20, 2009 … How to contact President Barack Obama and other White House Officials.
    http://www.emailthepresident.com/ – Cached – Similar
    and state we support FASC Concepts in part or in full, and share your views and be respectful in order to gain respect.
    Health Care within a moral value, is to ,
    Henry Massingale
    FASC Concepts in and for Pay It Forward
    http://www.fascmovement.mysite.com on google. yahoo, and aol.com
    please take the time and visit all my new friends on the net and if you wish to post with FASC Concepts you will be most welcomed. So join us and share your ideas as one in one voice. Just type in the web address and you will see over Results 1 – 10 of about 6,730 for www fascmovement com and there is over 10,000 post that are 6 month old.

  5. 3/08/2010
    To force pay into another system of failures within Health Care Insurance Groups.
    This economy will not balance with this concept of a tax forum against the Health Care System. The issue of how to force pay into this system of Health Care may have worked but I am still troubled over the progressive tax forum within this Bill. It covers so many items and Countries that it only forces the system to adjust itself. In some areas, increases against the people and the troubled economy, and in other areas, less effects will be felt.
    But this is my big problem, Government Officials seek help and they are to proud to ask us, “the true working force of Government.” It is understandable they have failed the People and within the United States Of America all we ask is to see us as who we are and not try to bring us into this world of the intellectual. I guess our Prime Directive is that of Star Trek, so it must be understood that for millions of people we are just as happy as can be making $13.00 per hour and we have no interest in this world of politics, and how to be a Enstine. Government Officials must understand that there is a level of people within different parts of this Country, that seek to be only that they find to make them happy.
    As for this economy well, it is said that the U.S.A. Arms Division has created enough arsenal to destroy every last creature in the world 2 times over,built with tax dollars. This would be funny if not for the irony of it. And now as time has passed Government Officials keep failing. Before 9/11 all the way to today.
    1.As it is in a world of a system, when employees continue to fail, one or two things happen, one; you get fired, two; if you see into a person a good, then it is political correct to implement a penalty or roll back in pay. But this implement of penalty is more favored in the course of action in the Federal Employment World. So how to fix the economy and unite it with the Health Care issue. It would be in the Countries best interest to implement a 10% per cent penalty against every State, County and Government Official within this Matrix of failures. Hey what is that old saying, what is good for the Goose is good for the Gander. I am serous about this, it is past due to show that our Government Officials they have failed, their system failure reaches into this world of warnings that they brush aside as if the information is not worthy noting. From Pearl Harbor to 9/11/2001 to 3/07/2010 of our tax system and Health Care Reform. This 10% per cent penalty should go into the Health Care Forum.
    2. The big problem that Government Officials have is that they have no street credit. President Obama still has some but if he does not take his family and step away from these dueling Parties, that fight over this Health Care Dollar, and stand with Us he will lose all credit from the streets to the county.
    3. President Obama, I would say to you, you have one last chance to regain the hopes and dreams of the American People. To reach out in a concept that states, if there is 250 million people in trouble because of these failures, I would give all my money to them and then I would say to all that I gave money to, “I have no money left, would you all please give me $1.00 back and then I would have $250. million dollars to start all over again.”
    4. Some have stated that I clam to have spiritual in site or something of the sort. I assure you this is not true, so when I state that I asked God to help, it is my way of saying hey Bobby show me how to work on theses Chevy engines. But I do thank you for the consideration. Consider me a cross of Jethro Bodine from the Beverly Hill Billies with my 10th. Grade education and Vin Diesel from the move Pitch Black.
    Henry Massingale
    FASC Concepts in and for Pay It Forward
    http://www.fascmovement.mysite.com on google, look for page 1 american dream official site

  6. Wow, It was stated that Health care is not a moral issue,hmmmm
    Please allow me to share a little story with you. As I watched my mom die from cancer, and Health care Insurance Companies dumped on her as if she was no more than a dog dieing on the side of the road, i dropped from and out of this system for over 30 years, and now because of system failure, the IT, has come into my life. As I watch Government Officials fight over this Health care Dollar, it reminds me of a bright sunny day in Tennessee while on a friends farm and a little bug flew in to the ground, and the chickens went plum off, boy oh boy the scawking and the feathers went shy high, so I reached down and I took this scared little Health Care Bug from Government Officials, and I have it safely in my hands. As I searched for a way to help, I asked God to help me build a Reform that is of a moral building block for the better good of man kind and to rebuild the National Security of the United states Of America. And you would never guess what God has allowed me to see. This little blog statement you will find true,
    I wish to give a great big thank you to all my new friends on the Internet for posting FASC Concepts in and for Pay It Forward.
    This building block for a honest Health Care Reform has been a great experience and for any one who did not take part, you have truly missed out on what makes Americans Great. This diversity created by Government Officials has failed and now the eyes of 173 million American People watch as now, for the first time Government Officials sit down together as it should be. The out come is yet to be seen. But they know that a anomaly has been created and it is because of the restructuring of The Constitution, The Bill Of Rights, and The Declaration Of Independence, “has been used in it original created forum” as a factor of a peoples right to undo the amendments of Laws that protected Health Care Companies against the People, over a dollar.
    And I wish to say i write what is needed in order that some how I can undo all the wrong I have done in hopes that the slate will be wiped clean….
    Just because our children do not understand I wish to share this again,
    “For days I worked the word diversity in my mind and it came to me that because of this it is not Americas weakness it is our greatest strength. And this is how I will show you.
    Bill Of Rights –
    The Declaration of Independence-
    United under one forum, builds what is called the Trinity of the Protection Of Laws. This is because these Laws were built by people of faith who gave thanks to God for this wisdom. One would have to see and admire the simplicity of the three as one and at the same time they maintain their independence.”
    On page 100 at our site is the early stages of what is called A Prime Directive for Health Care, so please drop on by and see 173 million peoples views in and for Health Care. And it should be known that this information on page 100 is true and documented in Law and History.
    Henry Massingale
    FASC Concepts in and for Pay It Forward
    http://www.fascmovement.mysite.com on google look for page 1 American dream official site.

  7. I have weighed this issue Health Care Bill vs. Constitution, and if a Political Party Gains control over a people because if the Health Care Tax Dollars, then it is laws with out moral value.
    You see when tobacco companies became under fire the laws were based on a moral value because of the issues within.
    The moral building blocks from Bill to Law is not supported because these Laws are for increase taxes and force pay against the people and a increase tax forum in a wide coverage stated to be in the best interest of the Country.
    So this is Health Care Reform at its best, please allow me to share a concept that will open your mind in a way never thought of for a United Forum Concept. At first I stood alone and I wrote my first blog and little did I know that thousands of people and companies stood by it,
    I have waited to see the issues of tax increase and health care, something that may be wrote by President Obama,
    You see a lot of what I write, is in fact that, I do not seek Political support because I do not belong to any party. As for President Obama and theses 60 people that hold seat of Government who wish to build 1900 page of law to Govern this system because of this Health Care dollar. I watch them stumble about without a clue of how to fix this failed system. To see into this failure, you must allow this system to be seen as a forum for dollars of taxes created as a constant as a yearly figure. This prediction of dollar for the future, is in fact what I call Artificial Intelligence built on the hope that taxes will stay a constant figure.
    To state it simple if Health Care Insurance Companies Unite and hand over this issue then the Officials of Government then they will have no choice but to turn their eye to the the companies of medication and medical supplies and hospitals and Doctors who charge cost that is the cause and effect of this failure within this system.
    This Health Care Forum we offer is built on a moral value, a strategic forum to place issues to work ,that offers freedom to be a part of it or not. This force pay against companies, force pay against VETS, and so on shows the lack of a moral building block within this Health Care Reform.
    What we offer is that, will, Lets use the AARP Health Care Insurance Company, and lets say that they have 30 million members. To show that this company can earn $150 million dollars per month and be released from the burden of medical cost, by what we wish to show as health care tax forum and a freedom of choice for a pay in to a forum to a Insurance Company for people who do not trust this system within The United States Government. A tax forum forces the Government system to work for the people and at the same time forces Government Officials to work for the people within this forum.
    To reach out to a company and sit down with them to build something never attempted in order to rebuild lives and the National Security of The United States as a moral building block without laws to Govern, but to protect this system from crime is what a moral law use to stand for.
    To show a $100 trillion dollar strategic building block by companies of freewill that step forward to help rebuild America. To build the most powerful anti war / crime forum ever conceived by such as I a nobody that only seek to only go back to work as a painter and rebuild his little company dream.
    As stated at first I stood alone against so many and I have found the uniting of people of different faith that seeks the same as I do. What makes FASC Concepts different, we do not ask for money and we opened a door for people to put their faith into themselves as a person and not what we say, to build on this and protect it under the concepts of law such as the Patriot Act. {A Moral Concept}
    There is a day coming that Officials of Government will see that the Laws built against God and Country was the first steps of the United States Of America headed for failure because it lacks moral value. This is what our enemies see, a Country of Laws that should of never been created by few against so many people of the USA.
    Is it so hard to see a concept for a Health Care Stimulus Package that builds jobs and life within a anti / crime forum ?
    Henry Massingale
    FASC Concepts in and for Pay It Forward
    found on google.com. And yahoo look for page 1 american dream offical site.

  8. who would my faviorte be, there is one party I hate less then the other but would not consider myself a member of either. I would prefer parties be abolished all together, people are elected to represent voters not parties, the party system serves no one but the system and the politicians

  9. “The problem with the minority party continually making the majority party fail, of course, is that it means neither party can ever successfully govern the country.”
    The problem with this being a problem is it’s not a problem. I don’t WANT a party governing the country. Nate’s & Tim’s clear favorite chooses not to govern, when its candidates win; and the Dems ain’t so hot behind the wheel, either.
    I’d prefer rules that encourage statesmanship, rather than gamesmanship – we’re talking about running a country here.

  10. The left doesn’t get what it wants so the Senate is broken. When it suits them, they make constitutional arguments that the Senate should have rules imposed on it; next week, they’ll turn right around and call the same constitution a “two century old dead tree”, etc.
    When it suits them, they’d kill the electoral college; when it goes their way, it’s sacred.
    Perpetual adolescence. It all amounts to someone else having the money, and the left wanting the money. The rest is just tactics.

  11. 70% of what our federal government considers today are things they have no business discussing. If we would stop senbing 16% of GDP to Washington to turn around and beg for it back we wouldn’t have half the problems we do. Medicaid, Education, and just about everything else except national defence and foreign relations should be legislated by the states and paid by the states.

  12. Any argument in favor of reducing the requirements for Senators to craft bipartisan agreements on major legislative proposals, such as so-called health care reform, is simply an argument for bigger more intrusive government, when the Democrats are in control, and less active government when the Republicans are in control. The great virtue of the filibuster is that it slows things down and reduces the chances that all proposals from either extreme get the scrutiny they deserve. If one argues for majority rule one does not have to argue for simple majority rule. In fact it is very hard to make the case that it is advisable for the Senate to have the capacity to pass controversial legislation with the potential to impact on virtually every American simply because it can muster 51 votes. In a deeply divided polity this is simply not acceptable. In fact it might make more sense to require that all spending bills need 60 votes, given the inability of Congress to keep spending and taxes in balance.

  13. Wow, 130 percent increase under 35 years of age. What do you think the impact will be for 55 years of Age?Twice 130 percent? The Facts are that Health Insurance Carriers can write their own check for nearly any reason at all. I think they call it demographics. I’m not sure if this is a individual or a group rate, but the bottom line is to reward the investor.
    If this was a group rate how would your employer decide to deal with the choices. Max out; out of Pocket expenses to keep the premiums low and /or mix it up so the impact on premiums are slightly Higher. Either way;the employer has to nibble away at the foundation of your coverage. Like a infestation of termites between floors of your home. On the Surface it looks great, until you use it.
    There are no free rides. You pay to be insured and you pay from being uninsured. Everyone gets a Bill! Sometimes you pay with your life and some one has to bury our rotten corpses.Someone always pays and often times its not the Wealthy!
    Lastly, the Health Care bill is as corrupt and fractured as the system. It would be of little consequence if it did not become Law. The AARP and the AMA supports it because of some progressive achievements in Medicare,but the rest is a dog and pony show.

  14. I think it is odd that they do not address the cost of this plan in terms of insurance rates. blue cross came out with stat’s that predict a 130% increase in premiums for people under 35

  15. FUNNY
    The author conveniently leaves out that most of the (bi-partisan) comments in NYT noted that, like the Electoral College, benefits swing with the political winds. Like Hilary Clinton FOR the Electoral College when it benefited her husband — and AGAINST when it did NOT benefit her political party. (OMG!)
    So, stay with the status quo.
    This requires a deep understanding of U.S. history and U.S. Senate history. Which the author, and Mr. Klein, obviously lack in a glaring fashion.

  16. Interestingly, prior to 1975, it took a two-thirds vote in the Senate to impose cloture. After the Democrats won a landslide victory in the post-Watergate 1974 election, they were able to push through a rules change that lowered the threshold to 60% of senators duly sworn in or, in most cases, 60 votes vs. 67 previously. Filibuster rules have stopped a lot of bad legislation over the years. Something as significant as healthcare, which accounts for one-sixth of our economy, should require something more than a simple majority to change in a material way. Personally, I think it is both unhealthy and wrong to try to create the impression among the middle class and lower middle class that all we have to do is raise taxes ad infinitum on the top 1% or 2% or 5% of the income distribution and everyone else can have a free ride. It’s disingenuous and wrong. In the end, however, if we, the people, insist on rewarding political hackery, that’s what we’ll get.
    I think the increased partisanship in our politics is attributable, in part, to the power of computers to gerrymander House congressional districts into a maximum number of safe seats which encourages extremism on both sides. Some states use independent commissions to redraw congressional districts after each 10 year census. It would be helpful if every state adopted that approach. At least senators run statewide races, so gerrymandering is not an issue there, nor is reapportionment following each census.

  17. My, oh my, how the tables have turned….. It seems only yesterday that Senator Reid said “The filibuster is the last check we have against the abuse of power in Washington”. Of course, he was the Minority leader at the time and the Bush administration was trying to ram through a bunch of judicial nominations repugnant to the minority party.
    The filibuster, blossoming from Mr. Burr’s misguided intentions, has been used by the Minority quite judiciously over the years in matters of great importance. It is probably being abused lately and this is yet another indication of increasing, and crippling, partisanship in our political system.
    Sometimes I wonder what is the point of debate on the legislature floor. Certainly none of the representatives are seriously considering what is being said. Votes are mostly predetermined before the debate commences and, as evident in the health reform bill, before even reading the bill.
    There is no need for great orations or even any sort of thinking anymore. For most legislators the vote is coerced by the party or purchased by special interests. The few representative attempting to act in the best interest of the Union and the people (on both sides of the aisle) are largely engaged in Quixotic exercises. I doubt that changing the Senate rules will fix this underlying problem.
    Besides, as Republicans have threatened in 2005, today’s Majority can change the rules from the Chair and prevent the filibuster. Just remember that this is an election year and another one is coming up shortly and what is good for the goose is good for the gander.
    “Nuclear” option anyone?