Tuesday, May 15, 2012

Elsewhere: Filibuster, Nebraska

At Plum Line this morning, I talked about the Nebraska Senate primary today, which has become quite the fascinating contest; I only really covered the campaign finance aspects of it, but click through the links in it for more. Extra point: if no-name candidate Deb Fischer wins, it'll mean that there's a decent chance that Republicans won't have a net loss of women in the Senate next year.

And at Post Partisan, I made the case against the Common Cause lawsuit over the Constitutionality of the filibuster. See also my old post on the same subject. Especially see also Greg Koger's piece over at the Monkey Cage today. Greg is basically the biggest expert on the history of the filibuster around...he takes on the history in a way that I can't, while I spend more time on the question of democracy, but really we overlap quite a bit. Hey, you never know what judges will do, but the Constitutional case against the filibuster is just very weak.


  1. The amazing story in NE is the one nobody is reporting. Why do so many people in the NE Republican establishment want Bruning to lose this primary? Figure that one out and you'll have a scoop.

  2. Common Cause's argument is less specious than you are giving it credit for. In Marbury v. Madison, the Court ruled that since the Constitution enumerated the circumstances in which the Supreme Court had original jurisdiction (but was vague on when the Supreme Court had appellate jurisdiction), Congress did not have the power to grant the Supreme Court original jurisdiction over anything not enumerated in the Constitution. There is a presumption that Congress has the power to grant new Appellate jurisdiction, but not original.

    Although the facts of the filibuster case and SCOTUS' original jurisdiction are not analogous, they are similar enough that there is a legitimate Constitutional argument. I agree with you that the filibuster is Constitutional, but the argument for the other side is firmly based in one of the pillars of Constitutional Law. it is not specious.

  3. I was hoping to learn from this post that there was a town called Filibuster, Nebraska. Considering the earlier meaning of "filibuster," it wouldn't' surprise me.

    On the point at hand, though, I agree with Daniel. The filibuster is so obviously dubious that it seems to me the burden of proof should be with those who say it IS constitutional, not those who say it isn't. What's the point of the Constitution specifying supermajorities for some limited purposes, if actually a supermajority can be the norm? And, turning it around, what other wacky rules could the Senate make for itself? Could it set its legislative agenda by spinning a great big wheel? Or draft legislation using a ouija board, in hopes of directly accessing the spirit of Ronald Reagan? Could it decide that southern states get a 3/5ths bonus on top of their regular vote? Clearly it can't have unlimited discretion to proceed in any way it wishes and still be a legitimate agency of a (purportedly) representative government, which is what the Constitution was written to create.

  4. Well, I of course disagree.

    Could the Senate employ wacky stuff like that? Sure. Do I want the Court to tell it how to run itself? Nope. I'll trust the re-election incentive to prevent them from it way before I trust SCOTUS.

    And, no, I don't really see the jurisdiction story as helping the anti-filibuster case.

    1. There are two different questions here: whether something is constitutional, and whether it's a good idea to have any given SCOTUS rule on it. I was reading Garry Wills recently on the "gag rule" that prevented members of Congress from even discussing slavery or receiving petitions about it in the run-up to the Civil War. That was a clear violation of the First Amendment right to petition and several other constitutional principles, but it's not like getting Chief Justice Roger Taney involved was going to make things any better. Asking John Roberts about the filibuster would be pointless in the same way.

      In general, though, SCOTUS has ruled many times on what is and isn't within Congress' powers to make rules for itself. It's clear from those rulings that while the courts usually defer on these matters, they don't have to, and sometimes shouldn't.


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