To Filibuster or not to Filibuster - A Stan Klos Commentary
To
Filibuster or not to Filibuster
is a U.S. Constitutional Yawn
Frankly, I do not understand what all the fuss is about on
changing the Rules of the United States Senate to disallow the use of a
filibuster. The 2nd U.S. Constitution in Article I, Section 5,
Clause 2 states that
“Each House may determine the Rules of its Proceedings,
punish its Members for disorderly Behavior, and, with the Concurrence of two
thirds, expel a Member.”
Since 1789, and every 2 years thereafter, a new Congress takes
the oath of office and each House (the U.S. Senate and U.S. House of
Representatives), by a simple majority, may determine the Rules of its
proceedings.
The question of Filibuster or not to Filibuster is a moot point
with the House of Representatives as they have enacted no such provision. The
same was true in 1789 when the 1st U.S. Senate approved its initial
19 rules by a majority vote. These original Senators, like the current House of
Representatives, simply followed the common practices of the Continental
Congress, United States in Congress Assembled and the British House of Commons,
which allowed a simple majority to end debate and bring anything to the floor
for a vote. The 2nd, 1791-93; 3rd, 1793-95; 4th, 1795-97; 5th, 1797-99; 6th,
1799-1801; 7th, 1801-03; and 8th, 1803-05 U.S. Senates followed suit. It was not
until the 9th U.S. Senate of 1805-07 that a not too attentive Vice
President decided to codify and streamline the Rules of the U.S.
Senate. The Vice President inadvertently, by all historical accounts, added the provision of
unlimited debates unless stopped by all but one U.S. Senator.
It wasn’t until 24 years later that the first use of the
unlimited debate was utilized by members who sought to derail the Bank of the
United States legislation in the 1830’s. Though infrequently used for the first
111 years (1806 to 1917), the rule was changed by the Democratic controlled 65th
U.S. Senate (1917-1919) from 99 U.S. Senators to 2/3rd’s of the
membership to close debate. This change in the "filibuster" was
passed by the Democrats as isolationist Republicans utilized the rule to make it
more difficult for President Woodrow Wilson to prepare for World War I. The
final change to unlimited debate came in 1975 when the Democratic controlled 93rd
U.S. Senate altered the rule yet once again to require 3/5th’s of
members to close debate.
Today, like in 1789, the 2nd
U.S. Constitution empowers each new Congress, both the House and the Senate, to
set their own rules. The 1806 U.S. Senate chose to not correct the "1806
error" after their initial vote and the new rule stood for 111 years
allowing only one U.S. Senator to block a vote. The Democratic controlled 65th
and 93rd U.S. Senates change the filibuster rules again, by a simple
majority, to 2/3rds in 1917 and 60 Senators in 1975 to block a measure from
coming to the floor. Today the 109th Republican
Congress is also empowered by the U.S. Constitution to set their own rules.
Whether you agree or disagree with the reasoning for
a filibuster rule change the fact is the U.S. Senate may return to a Simple
Majority Vote on the Advice and Consent
of Federal Judges and other Presidential appointments at their pleasure by
eliminating the filibuster rule.
Historically, any serious scholar will agree that the constitutional framers
intended only majority votes on U.S. Senate Advice and Consent. Even
with the 1806 Senate cleaning up
its rulebook and dispensing with the rule that allowed a majority to limit the
debate, no Founder ever
utilized a "filibuster" to block a simple majority yea or nea vote on a
U.S. Presidential appointment.
With kind personal
regards I am your most humble and obedient Servant,
Stanley L. Klos
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