Sunday, December 04, 2005

On the Filibuster

They called it the “nuclear option”; I call it a “mistake.”

The filibuster, a procedure used to delay or block legislative action, is neither a process defined in the Constitution or in Robert’s Rules of Order. It is, however, covered by the Standing Rules of the Senate which govern the day to day operations of the legislative body. Historically, the filibuster was used only to delay or block legislation, but in recent years it has evolved into a tactic to impeded nominations the President has made to a Cabinet level position or the judiciary, at the Supreme Court or appellate court level. Cloture is the term used to close a filibuster and bring the issue to a vote, and it takes 60 of the 100 Senators to activate the end of debate.

Recently, the issue has gained national attention as numerous nominations by President Bush to the federal courts were being stalled by Senate filibustering. In an attempt to remove the roadblock, the Republican leadership announced that they were ready to invoke the “nuclear option” which would change the Senate rules to allow a simple majority (50 of the 100 Senators) to shut down a filibuster. Mistake: – in our society the word “nuclear” seldom carries a good connotation. Even in “nuclear radiation” for a cancer treatment it is thought of as a destructive procedure wherein the cancerous cells will be destroyed. By referring to the rule change as a “nuclear option” the Republican Leadership afforded the critics to “spin” the change into one which would directly attack the Constitution and the pillars of the Senate’s heritage.

In May of this year, a group of Senators dubbed the “Gang of 14” (of which Senator Mike DeWine was one) arrived at a compromise to avoid a filibuster showdown on several judicial nominations and the exercise of the “nuclear option”. The compromise ended the filibuster on three nominees so confirmation was apparent, continued the filibuster on two other nominees thereby rejecting them without a Senate vote, and promised to use the filibuster tactics only in “extraordinary circumstances” – of course, the term extraordinary circumstances was not defined.

By any degree of “common sense” and in reality, the filibuster to delay the President’s nominations is the direct attack on the Constitution, wherein it states in Article II – Section 2 “[The President] … by and with the Advice and Consent of the Senate, shall appoint Ambassadors, … , Judges of the supreme Court, ….” By filibustering, and thereby not giving the President an “up or down” vote, the Senate is being derelict in one of its perfunctory duties outlined in the Constitution. It was one thing to filibuster a piece of legislation which has no Constitutional guarantee to passage or rejection, it is quite another issue to use the process to avoid a time honored Constitutional requirement of “advice and consent” whereby the nominee is either confirmed or rejected. In addition, filibustering leaves the judicial position unfilled and burdens the rest of the court system which in turn impacts the serving of justice to “we the people ….”

The interesting aspect to all of this is that a precedent to change the Standing Rules of the Senate has been established before, but it has been termed the “Constitutional Option” rather than the “nuclear option” because the changes have the support of the Constitution. Article I – Section 5 states “Each House may determine the Rules of Proceedings ….” By each “House” it is meant the House of Representatives and the Senate for each and every session of Congress. In 1977, '79, '80 and '87, Senator Robert Byrd, the Senate Majority Leader, four times invoked rule changes similar in nature to the proposed changes this year BUT he did them under the guise of a “Constitutional Option” which did not afford the opposition the “spin” that the Constitution was being violated.

Senator Bryd’s history of rule changes are a contrasting view to what he said at the press conference announcing the “Gang of 14” compromise. Byrd, the chamber's most senior lawmaker, applauded the group of 14 and said:
"We have lifted ourselves above politics, and we have signed this document in the interests of the United States Senate, in the interest of freedom of speech, freedom of debate and freedom to dissent in the United States Senate."
Time will tell how enduring the comprise will be, but I beg to differ with Senator Byrd. The compromise did not lift the Senate above politics, considering his use of rule changes in the past, it smacks of just that – politics as usual. He can report that it is the interest of “freedom to dissent in the United States Senate”, but it is at the expense of the Senates responsibilities of advice and consent laid out by the United States Constitution. It is a disappointment to me that seven Senators supported this political power struggle and that the Republican leadership in the Senate accepted it.

William G. Pierce


Blogger LargeBill said...

Mr Pierce,

I found your blog through a link on Good luck in your campaign. I realize the difficulty in running against an incumbent senator. However, Sen. DeWine seems to be trying to even the playing field by alienating those of us who should be his strongest supporters. His latest votes (ANWR, etc) combined with his sorry behavior as a part of the Gang of 14 leave me unable to vote for him. I would urge you to start spreading a message declaring the areas where your positions differ from Sen. DeWine's. Most voters don't follow these issues closely enough to understand why we are dissatisfied with DeWine.
Bill Keane

Wed Dec 21, 07:31:00 PM EST  
Blogger PierceBlog said...

Thank you for your support, Bill.

Mr. Pierce is in the process of putting together a number of commentaries on these issues. Check back often, both here on the blog and on the Issues page of the campaign website...

Blog Administrator
Pierce for Senate

Fri Dec 23, 12:12:00 PM EST  

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