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Dubious Soldiers In A Good Cause

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While as most if you know I certainly agree with David RePass’s general hostility to the filibuster, some of his specific arguments here are problematic. His conclusion — that the solution to the problem of adding yet another onerous supermajority requirement to a constitutional order that already has too many veto points is to force “real” filibusters — is one you see a lot. And maybe it’s right, although I think this is a lot less clear-cut. Filibusters have become informal because they entail real costs to the majority as well, as the Senate can’t do anything while they’re ongoing. And while such arguments simply assume that the filibustering minority would at least take the political hit for this, it ain’t necessarily so. It comes down to competing narratives, and while most of the media might blame minority obstructionism they might also blame the majority for not playing nice enough with the Wanker Caucus. Maybe it’s a strategy that’s worth trying, but it’s no panacea, and could backfire.

This argument, though, I really don’t buy:

The phantom filibuster is clearly unconstitutional. The founders required a supermajority in only five situations: veto overrides and votes on treaties, constitutional amendments, convictions of impeached officials and expulsions of members of the House or Senate. The Constitution certainly does not call for a supermajority before debate on any controversial measure can begin.

This claim is, quite frankly, nonsense, just as it was when Republicans were making it before 2006. While it’s true that the Constitution does not require a supermajority for legislation to proceed in the Senate, it alas also explicitly gives the Senate plenary power over most of its rules and procedures, which doesn’t preclude any kind of supermajority requirement to end debates (whether formal or informal.) It debases constitutional arguments to make claims about “clear” unconstitutionality that are so poorly grounded. The better approach is just to approach the filibuster head-on: it’s a bad rule that imposes real costs while providing virtually no benefits in practice, and it should be changed. But not every bad rule is unconstitutional.

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