Dec 16 2010

Another Game of Constitutional Chicken: Filbuster

(10 am. – promoted by ek hornbeck)

I have said this a number of times, the filibuster as it is currently being used to obstruct the Senate is unconstitutional. The Constitution is the supreme law of the land and cannot be abrogated by the Senate merely making a rule. The Vice President presides over the Senate and has a duty to make rulings on order and procedure when the Senate is in session. The Constitution provides for “one-person-one-vote” and “majority rules”, there is no mention of “filibuster”.

It is amazingly simple:

  1. During debate, a Republican Senator engages in a standard obstruction tactic, such as a hold, actual filibuster, or proposing numerous, non-germane Amendments.

  2. The Vice President, as Presiding Officer, rules that Senator’s hold, filibuster or spuriousamendments out of order.

  3. The Senator who holds the floor, and had attempted the hold (filibuster, or amendments), could then appeal the decision of the Presiding Officer to the Senate as a whole.

  4. A simple majority (51) can then vote to uphold the ruling of the Presiding Officer that the hold (filibuster or amendments) were out of order.


This mechanism is not without precedent:

In 1975 the filibuster issue was revived by post-Watergate Democrats frustrated in their efforts to enact popular reform legislation like campaign finance laws. Senator James Allen of Alabama, the most conservative Democrat in the Senate and a skillful parliamentary player, blocked them with a series of filibusters. Liberals were fed up with his delaying tactics. Senator Walter Mondale pushed a campaign to reduce the threshold from sixty-seven votes to a simple majority of fifty-one. In a parliamentary sleight of hand, the liberals broke Allen’s filibuster by a majority vote, thus evading the sixty-seven-vote rule. (Senate rules say you can’t change the rules without a cloture vote, but the Constitution says the Senate sets its own rules. As a practical matter, that means the majority can prevail whenever it decides to force the issue.) In 1975 the presiding officer during the debate, Vice President Rockefeller, first ruled with the liberals on a motion to declare Senator Allen out of order. When Allen appealed the “ruling of the chair” to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were losing the precedent, offered a compromise. Henceforth, the cloture rule would require only sixty votes to stop a filibuster.

When the Republicans held the Senate majority during the previous administration, then Vice President Dick Cheney threatened to invoke the “nuclear option” ending filibuster if the Democrats continued to filibuster President Bush’s nominees. The Democrats backed off. So why hasn’t President Obama done just that? This is just another game of ‘Constitutional chicken” to excuse the President’s failure to get a liberal/progressive agenda passed.

It is high time the Vice President Biden took his seat and gaveled filibuster out of order.


  1. TMC
  2. BobbyK

    they fix the filibuster before Jan 4th and actually accomplish some things.

    BUT, I’m worried that we’ll wait to fix it until Jan 5th, the first day of the new session.  

    With a Repug house, and a RePug-Lite Executive, The combination of Senate Blue Dogs, Repugs, and Dems with no spine will easily make a majority. We’ll end up getting rid of the filibuster just in time for it to bite liberals in the ass.

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