1) Hey hey, ho ho, filibuster's gotta go. Looking for a nice law-review-style analysis of what's wrong with the filibuster? Look no further! The summer issue of the Harvard Journal on Legislation has an article called "The Senate Filibuster: The Politics of Obstruction" (pdf link) by Emmet Bondurant, at right.
A few judges have said, in dicta, that the filibuster rule is "only" a rule of procedure and does not violate the majority vote requirement in the Constitution because the rule does not, on its face, change the number of votes ultimately required for final passage of a bill in the Senate....
By way of analogy, consider that the Supreme Court has repeatedly held in the so-called "White Primary" cases that state statutes and political party rules that prevented black voters from voting in primary elections were not immune from attack simply because those voters were allowed to vote in the general election. In Terry v. Adams, for example, the Supreme Court ruled that the exclusion of African American voters from participating in a pre- primary election held by an all-white political club in Texas was unconstitutional, even though African Americans were not prohibited from voting either in the party primary which followed or in the general election. The Court said that the "primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern in the county."
Similarly, the filibuster (and the threat of one) has become an "integral part" of the legislative process in the Senate. The Supreme Court has not hesitated to declare unconstitutional statutes whose effects were far more subtle and indirect than the effects of Rule XXII [which governs the filibuster].
Building to this conclusion:
The filibuster is fundamentally inconsistent with the democratic process envisioned by the Framers of the Constitution. The constitutionality of the filibuster does not depend on which political party happens to be in power at the moment, nor should its validity be a partisan issue with Republicans on one side and Democrats on the other. At one time or another, people on opposite ends of the political spectrum have agreed that the filibuster is un-constitutional. It is time for the Supreme Court to do the same.
The article asserts that any Senator would have standing to sue to overturn the filibuster rule. More analysis available from Common Cause.
2) Nullification moves north. From a political scientist at the University of Maine, an interesting look at the way that the "nullification" battle is affecting one of the last moderate Republican in the Senate.
Olympia Snowe is up for re-election in Maine, which a year ago very narrowly elected a Tea Party Republican governor, Paul LePage in a race where the Independent and Democratic candidates ended up competing for the non-Tea Party votes. The U Maine professor, Amy Fried, points out that in Washington, Snowe is moving hard to the right -- including joining the GOP effort to block Richard Cordray's nomination and therefore prevent operation of the Consumer Finance Protection Bureau, even though she voted for creation of the CPFB last year. Meanwhile in Maine, an apparent push-poll operation is underway to attract independents to vote in the GOP primary (which they can decide to do on election day there) and thus dilute support for a Tea Party challenger to Snowe within the party. This stage of politics has distorting effects all over.
This is probably it from me for the next few days. It's that time in the article-writing cycle.
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