The Best Argument Against the Filibuster: It’s Unconstitutional!

There’s a rumor that Krysten Sinema (“Dem” – AZ) thinks her career — including being elected to the Senate — has been so impressive that her logical next step is to run for president. That’s why she doesn’t care that protecting the filibuster is killing the Democratic agenda and that, as a result, Democrats in Arizona hate her. She’s planning to run for president in 2024 under the banner of “bipartisanship”. It’s a ludicrous idea, but her big money donors are willing to fuel her fantasies. 

Filibuster reform may be dead for now but Thomas Geoghagen explains why the filibuster is  unconstitutional. From The New Republic: 

Over the course of many years and many think pieces, the case against the filibuster has been laid out. Typically, critics of the Jim Crow relic invoke various historical facts (some of which have apparently been lost on, or willfully ignored by, certain critical members of the Senate), as well as an array of practical and prudential bases. Onto the pile, however fruitlessly, let us add another: The filibuster is a plot against Vice President Kamala Harris—to take away her constitutional right to vote.

Article I, Section 3 of the Constitution makes it plain: Harris, as chair of the Senate, is given the responsibility to vote “when the Senate is equally divided.” In all the furor over the filibuster blocking voting rights legislation, keep in mind it is blocking Harris from this constitutional right, as well. The supermajority rule that ran counter to the Founders’ desires, now upheld by the filibuster’s status quo, is not just aiding in the disenfranchisement of voters by blocking meaningful voting rights legislation from passage—it’s also disenfranchising the woman sent to Washington to resolve the disputes of a divided Senate.

It would be fitting if Harris, given the chance to gavel the filibuster out of existence to pass the Freedom to Vote Act, reclaimed her rights at the same time. She can put that to the Senate on January 17 when any rules changes are being considered—by starting with a declaration that the filibuster is not just unfair or undemocratic but unconstitutional, as well.

The filibuster is not just a technical violation of Article I—though it is precisely that—it’s also a repudiation of its original design. That design created a bicameral legislature, with each house operating by majority rule, to replace the single legislative chamber that operated under the Articles of Confederation by supermajority or unanimous consent. By sneaking in a supermajority rule on the sly, as a procedural rule of debate, the Senate has essentially brought back a form of the obsolete Articles of Confederation. It shouldn’t really come as any surprise that the republic now faces a similar impetus toward disunion to the one it faced when the Articles were in place. The plot against Kamala Harris is not just a plot against the Constitution—it’s a force that threatens the existence of the United States itself.

It is without doubt a fact that the Framers wanted a deliberative legislative body. That’s why they divided the Congress into two houses—to provide a vital check and balance. Supermajority rule in the Senate upends the Framers’ intentions: It places too great a check on the House—without the House’s consent. More specifically, it inflicts an institutional injury on the House, as the “active principle of government” that the House is unable to redress. This is exactly what worried James Madison, Alexander Hamilton, and others who bitterly criticized supermajority rules.

Yes, as defenders of the filibuster point out, the Senate has a right to make rules as to its own proceedings, but trifling with majority rule crosses textual red lines. Beyond the aforementioned Vice President Voting Clause in Article 1, Section 3, there is also the “Presentment Clause” of Article I, Section 7, which says in two places—yes, twice—that any bill or resolution passed by the House and Senate, “shall, before it becomes law, be presented to the President,” and if sent back, then it must be “approved by two thirds of each House.” The Presentment Clause would make no sense if the Senate required more than a majority to send it to the president in the first place. Finally, there is the Enumeration of Super Majority Rules, the seven times in the text of the Constitution that specifically lay out where and when a supermajority is expressly required.

One might nevertheless ask, why not by majority rule permit Congress [to institute] rule by supermajority? Of course this is an academic question—for Congress, by vote of both Houses, has never adopted a supermajority rule. The filibuster is simply a rule of the Senate, which has the effect of limiting the ability of the Congress to act. But Congress itself has never approved it. Yes, there has long been a cloture rule for the so-called “talking” filibuster. In 1917, the Senate adopted such a rule, which then required a two-thirds vote—now reduced to three-fifths. And while this rule did have a disgraceful and pernicious effect in race-related matters, the talking filibuster of old only on rare occasions held up a majority vote, maybe once or twice a year or not at all. But in our time, the talking filibuster for which the rule was intended is gone; no one has to talk to block a bill. And what was a procedural rule to get to a vote faster is now a rule that stops a vote from happening at all.

No, Congress has not adopted and never would adopt such a rule. Why would the House consent? As it now exists, it lets the Senate place a much greater check on legislation passed by the House than the Framers ever intended. It’s bad enough that this upsets the balance of power between the Senate and House, but it also upends the balance of power between the federal government and the states. The Senate, representing the states, is blocking the House, representing the people.

For the sake of argument, let us assume the text of the Constitution is less explicit than it actually is. Allowing Rule 22, which bars a vote by the majority without even active debate, still violates two fundamental canons of constitutional interpretation. The first canon, or rule, is the expressio unius principle—listing the exceptions for supermajority implies the exclusion of all others. That principle is basic in constitutional interpretation. In the case of Powell v. McCormack, the Supreme Court barred the U.S. House from excluding Adam Clayton Powell as a member because of “unethical conduct.” That was not one of the bases listed in the Constitution, and the listing of those bases implied the exclusion of others.

Additionally, to allow the Senate to add a supermajority rule would violate a second canon, the so-called Federalism Canon—which calls for the balance between federal and state power to be left alone. The filibuster changes the relative balance of power between the Senate, representing the states, and the House, representing the people. It is no accident that in blocking voting rights legislation, it is being used to protect the states from being regulated.

Harris, as chair, could reach the same conclusions. Rather than just hope a Senate majority uses the “nuclear option” to rid us of the filibuster, she could press the button. For the reasons above, she could declare the supermajority for cloture to be in conflict with Article I.

She may fail in the attempt. A majority can overturn a ruling of the chair. It is not so easy even for some Democrats in the Senate to give up the filibuster. There are many, many other bills that the senators take up other than voting rights legislation. So individual senators are caught in a dilemma worthy of a class in game theory—though glad to remove it for A, they do not want to remove it for B, or maybe C, or maybe D, or maybe an unknown X that will arrive later in their six-year terms. So the filibuster remains in place forever—except now for the budget and for nominations to judgeships and political positions. In these two cases, the budget and nominations, there is no choice but to get rid of the filibuster or there would be institutional collapse of the courts and of the executive branch.

However, with the John Lewis Act and Freedom to Vote Act, we are speaking about the institutional collapse of democracy itself. Protecting the integrity of federal elections from state interference is necessary to the integrity of the federal government—it is an obligation that is set forth in the original Elections Clause, Article I, Section 4. It is the only clause, the only text, that says Congress can override any state regulation of a federal election. Ever since 1787, Article I, Section 4 has been in there, the original nuclear option, to protect the national government from institutional collapse. It is an outrage to use the filibuster to block even the power of the national government to save itself. Surely that must have at least the same priority as enacting a budget by majority rule.

Let the vice president show some muscle in defense of her country. Let the debate start on January 17 with a ruling from the chair that Rule 22 is in conflict with her own right to cast a vote when the Senate is evenly divided. Then let her dare the Senate to overrule her. To reclaim the right to vote in the blocked legislation, she should begin with reclaiming her own right to vote, as well.

By a quirk of history, the plot against America is now also a plot against a Black woman’s right to vote. Who says the vice president has nothing to do?

When Will We Build Back Better? And What Will We Do?

“Build Back Better”. It’s not a great slogan, but Biden’s BBB bill will be passed eventually. It won’t be as sensible as what Biden originally proposed. A few “conservative” or flaky congressional Democrats insisted on making it worse. But it will make a difference in millions of lives when it finally becomes law.

Democrats in the House say they want to pass it this coming week, which means by Thursday, November 18. Then, however, both the House and Senate take another much needed break until the end of November. Assuming House Democrats do their job next week, Senate Democrats will then have two weeks to do theirs, before it’s break time again.  Unless Senate Democrats approve it by December 10, it won’t get done until 2022 (we really are living in the future). 

Almost all the news about BBB has been about the spending side of the bill, leaving out the popular offsetting taxes the bill would impose on corporations and people with plenty of cash to spare. The other thing the news has mostly ignored is what the bill would do. A relatively objective and nonpartisan group called the Committee for a Responsible Federal Budget has kindly provided the list below. The CFRB concludes it would have a small effect on the federal deficit in its present form. In the long run, they say it would have a bigger effect, assuming all the temporary parts of the bill are made permanent. But there’s no doubt whatsoever these things are worth doing and we can afford to do them (unlike the last Republican tax cut, for example, which wasn’t worth doing and made good things like BBB less easy to afford).

What’s in the Build Back Better Act?

Policy Cost/Savings (-)
Family Benefits  $585 billion
Provide universal pre-k & establish an affordable child care program (6 years) $390 billion
Establish a paid family and medical leave program $195 billion
Climate & Infrastructure  $555 billion
Invest in clean energy & climate resilience $220 billion
Establish or expand clean energy & electric tax credits $190 billion
Establish or expand clean fuel & vehicle tax credits $60 billion
Establish or expand other climate-related tax benefits $75 billion
Enact infrastructure & related tax breaks $10 billion
Individual Tax Credits & Cuts $210 billion
Extend Child Tax Credit (CTC) increase to $3,000 ($3,600 for kids under 6) for one year $130 billion
Make CTC fully refundable for 2023 & beyond $55 billion
Extend expanded Earned Income Tax Credit (EITC) for one year  $15 billion
Other individual tax changes $10 billon
Health Care  $335 billion
Strengthen Medicaid home- and community-based services $150 billion
Extend expanded Affordable Care Act (ACA) premium tax credits & make premium tax credits available to those in Medicaid coverage gap through 2025 $125 billion
Establish Medicare hearing benefit $30 billion
Invest in the health care workforce $30 billion
Other Spending & Tax Cuts  $310 billion
Build & support affordable housing $170 billion
Increase higher education & workforce spending $40 billion
Other spending & investments $100 billion
Reduce or Delay TCJA Base Broadening $290 billion
Increase SALT deduction cap to $80,000 through 2025 $285 billion+
Delay amortization of research & experimentation expenses until 2026 $5 billion’
Enact Immigration Reform  ~$100 billion
Subtotal, Build Back Better Act Spending & Tax Breaks  $2.4 trillion
Increase Corporate Taxes -$830 billion 
Impose a 15 percent domestic minimum tax on large corporations -$320 billion
Impose a 15 percent global minimum tax & reform international taxation -$280 billion
Impose a 1 percent surcharge on corporate stock buybacks -$125 billion
Enact other corporate tax reforms -$105 billion
Increase Individual Taxes on High Earners  -$640 billion
Expand the 3.8 percent Net Investment Income Tax -$250 billion
Impose a 5 percent surtax on income above $10 million & an 8 percent surtax on income above $25 million -$230 billion
Extend and expand limits on deductibility of business losses -$160 billion
Other Revenue -$170 billion
Reduce the tax gap by funding IRS & other measures -$125 billion*
Reinstate superfund taxes on oil -$25 billion
Expand nicotine taxes -$10 billion
Reform tax treatment of retirement accounts -$10 billion
Health Care -$250 billion
Repeal Trump Administration drug rebate rule -$150 billion
Reform Part D formula, cap drug price growth, & allow targeted drug price negotiations -$100 billion
Establish $80,000 SALT deduction cap from 2026 through 2030 & $10,000 cap in 2031 -$300 billion+
Subtotal, Build Back Better Act Offsets  -$2.2 trillion
Net Deficit Increase, House Build Back Better Act  ~$200 billion

We Can’t Afford To Be Discouraged

Every so often I step back from the day’s transitory events and consider that a president of the United States recently tried to overturn the results of an election so he could stay in office. With the help of various public officials and propagandists, he has been able to convince millions of Americans that changing the results of the election, i.e. insurrection, was justified. A year later, few Republican politicians refuse to admit he lost.

Furthermore, all around the country, the former president’s supporters are trying to make it harder to vote and easier to change the results of future elections, including an election in which he may again be a candidate.

Support for the Republican Party should have collapsed by now. It hasn’t.

Meanwhile, in Washington, two senators who claim to be Democrats are delaying the implementation of President Biden’s agenda, even though it’s the agenda Biden ran on in 2020. In fact, these two senators refuse to modify the current version of a Senate rule in order to protect the voting rights under assault by members of the other party.

Some voters who ordinarily support Democrats, or might be inclined to do so given the present state of the Republican Party, are discouraged. It’s feared that these voters might not turn out in sufficient numbers in upcoming elections.

The irony is that the situation in Congress and Republican-led statehouses should lead more people to vote and support Democratic candidates. Insuring that the House of Representatives remains in Democratic hands after the 2022 election is crucial. Insuring that there are at least 50 Democrats in the Senate willing to support the president’s agenda and protect voting rights is also crucial. Insuring that more Democrats win local elections is crucial too.

It isn’t fearmongering to point out that America’s political system is on very shaky ground. Majority rule is under attack by right-wing authoritarians. Time is running out to seriously address the climate crisis. This is no time to be discouraged and stop fighting for a better America and a better world.

Sometimes I Think This Country Is Too Stupid To Survive — Part 3

If you use a credit card to buy $1,000 worth of stuff, you have taken on $1,000 worth of debt. You either have to give the credit card company $1,000 the next time they send you a bill or pay an outrageous amount of interest on what you haven’t paid off.

The federal government is in a similar situation. Since 1970, except for the last four years of the Clinton administration, the federal government has taken on more debt. It’s spent more money than it’s received through taxation, i.e. it’s run a deficit. As a result, the total national debt has increased.

In order to make up the difference, the government has issued bonds, i.e. borrowed money from investors in the bond market (in other words, the government is you and the bond market is the credit card company).

So, in 2020, the last year of the T____ administration, the government spent $6.5 trillion. But the government’s revenue, partly due to tax cuts, was only $3.4 trillion. That means, roughly speaking, the federal government needed to come up with $3.1 trillion dollars to pay its various bills. It was necessary to sell a lot of bonds.

But more than 100 years ago, during World War I, Congress decided that instead of approving the sale of all those bonds, they would set an upper limit on how many bonds the government can sell. That gave the people at the Treasury Department some flexibility. They didn’t have to repeatedly ask Congress for permission to sell more bonds to pay the government’s expenses.

There have been a few changes to the debt limit law since then, but that’s the basic idea. Congress and the president approve a budget. The executive branch then spends a lot of money. When there are too many bills or other obligations to address compared to the taxes collected, the Treasury Department sells bonds to cover the difference, i.e. the deficit. Raising the debt limit doesn’t authorize new spending; it authorizes new borrowing to cover debts the government has already incurred by following the budget Congress and the president approved.

Ordinarily, Congress would simply vote for the debt limit to be increased. But things are not so simple these days. Congressional Republicans don’t believe in governing responsibly. They look for ways to make their Democratic colleagues and the government as a whole look bad. They then claim to be the ones who can fix the problems they’ve done so much to create.

Since the House of Representatives has already addressed the problem by a simple majority vote (218 Democrats voted Yes, 210 Republicans voted No), it’s now up to the Senate to finish the job.

In a more rational world, the 50 Democrats in the Senate could all vote Yes while the 50 Republicans voted No. Vice President Harris could then vote Yes and break the tie. Problem solved (for now).

But the Senate doesn’t have majority rule. It has the filibuster. Sixty votes are needed to do most of the Senate’s business, including raising the debt limit. Without the agreement of at least 10 Republicans, therefore, the 50 Senate Democrats can’t even bring the debt limit increase to a vote.

There are various ways the problem can be addressed before the U.S. government runs out of money and the global markets and the global economy take a dive.

The Treasury Department could mint a special coin and assign it a value of trillions of dollars. Depositing this coin at the Federal Reserve would mean the government suddenly had plenty of money. But it doesn’t look like anybody in authority likes this idea.

The Treasury Department could ignore the debt limit law, citing the 14th Amendment to the Constitution. That amendment says “the validity of the public debt of the United States, authorized by law . . . shall not be questioned”, which kind of means the government has to pay its bills. But again, this idea doesn’t have enough support.

A third option, of course, would be for the Republicans to allow the Democrats to proceed to a vote. But the Republicans say they won’t do that.

Instead, they say the Democrats should pursue a fourth option: use the complicated process known as budget reconciliation, which allows a majority in the Senate to pass budget-related legislation. Unfortunately, it’s a very complicated process. In fact, it’s the very complicated process the president and congressional Democrats are (very slowly) using to pass most of Biden’s agenda (the agenda that’s popular with the public but too expensive for two Democratic senators, one who’s actually a moderate Republican and one who’s a mystery wrapped in an enigma). 

Reuters explains what the Democrats would have to do in order to use reconciliation to raise the debt limit:

* The budget committees in the Senate and House of Representatives would have to write legislation enabling the debt limit to be raised. . . 

* The Senate Budget Committee likely would deadlock 11-11 if all 22 members were present, preventing Chairman Bernie Sanders from sending such a bill to the full Senate.

* The Senate’s Majority Leader could then make a move on the Senate floor to “discharge” the stuck legislation from the budget panel. There would be a maximum of four hours of debate and then the Senate would vote on whether to instruct Sanders to release the bill to the floor.

* The Senate could then start debate for a maximum of 20 hours. But it would be open to a potentially large number of amendments in a procedure that is known as a “vote-a-rama.” Amendments would have to be directly related to budgetary matters however. Vote-a-ramas are often all-night affairs.

* Following votes on amendments, the Senate could vote to approve the debt limit bill and could do so with a simple majority of 51 votes.

* The House also would have to go through the process of debating and passing the bill, also by simple majority.

* As all of this is unfolding, global financial markets could become unsettled as Oct. 18 nears and Washington flirts with a default. 

The reason Senate Republicans want the Democrats to use reconciliation for the debt limit is that it would interfere with using reconciliation to pass Biden’s big, popular agenda. That’s the whole reason.

Fortunately, there’s a fifth option. The 50 Senate Democrats could make an exception to the filibuster rule. That’s already been done for budget reconciliation and approving judicial appointments. Why not do it for the debt limit too? It shouldn’t require 10 extra votes in the Senate to allow the government to pay its credit card bills.

But those two Democratic senators (the moderate Republican and the mystery woman who now votes like one) think the filibuster rule is near sacred. They claim it brings the Democratic and Republican senators together in a wonderful spirit of compromise. Maybe it did once upon a time, and once in a while, but all it does now is allow a minority to control the Senate.

So when the Republican Minority Leader says the debt limit problem is for the Democrats to solve, since they control the White House, the House of Representatives and the Senate, he might as well be speaking in tongues. The only way Democrats can control the Senate is to eliminate or change the filibuster rule, which so far isn’t happening. (While they’re at it, they should make a filibuster exception for voting rights too — that seems obvious but so far isn’t to all 50 of them).

When You Think About It, It Really Sucks

From Christian Cooper for The Washington Post way back in January:

Imagine if a country today took a plurality-Black  population, stripped those citizens of any meaningful political power, and relegated them to the whims of a few privileged Whites who ruled in comfort and majesty.

Welcome to Washington, D.C. How did our nation’s capital earn this disgraceful distinction? Throughout the latter half of the 20th century, African Americans constituted a majority of the residents of the District of Columbia. Today, about 45 percent of D.C.’s population is Black, still the city’s single largest racial group. But the people of D.C. do not have voting representation in the House of Representatives or the Senate — despite paying the same federal taxes as the rest of the country.

To make matters worse, D.C. residents have only limited control of affairs within their own borders; the city’s budget and every law the city council passes are subject to approval by Congress. So a collection of outsiders — mostly White men of privilege from somewhere else — dictate to the people of D.C., who are mostly non-White, how things are going to be.

Black disenfranchisement wasn’t the goal from D.C.’s start; rather, it resulted from the confluence of population growth, demographic shifts and the Framers’ quest for neutrality at the center of government. That this situation arises as an unintended consequence makes it no less intolerable.

Yet it has been tolerated, for decades, the insult to Black dignity and self-determination shrugged off, revealing the racial bias at the core of its continued existence. It is part of a long history of African American disenfranchisement, as old as the United States, whose Constitution counted our enslaved ancestors as three-fifths of a person. It echoes the nearly century-long denial of voting rights to Black people, followed by the suppression of the Black vote on through the civil rights era, to today’s renaissance of Black voter suppression, masterfully recast as efforts to combat nonexistent “voter fraud.”

It continues because some look at our right to have a say in our own destiny and still see us as only three-fifths human.

D.C.’s political limbo is all the more infuriating because ending this injustice would be relatively easy. Shrinking the federal enclave to a much smaller, nonresidential area of monuments and key buildings and granting the rest of D.C. statehood would give the people of the District the home rule and full representation in Congress every American deserves.

With some 700,000 residents, D.C. as a state would be more populous than two of the other 50 states. There is no defensible reason that sparsely populated, overwhelmingly White Wyoming (pop. approx. 580,000) and Vermont (approx. 625,000) should each have two senators while mostly non-White D.C. gets none.

Republicans respond by saying that, since any senators from D.C. would likely be Democrats, granting statehood to the District is nothing more than an unfair political power grab. Here’s what’s truly unfair: Our Constitution grants every state two senators regardless of its population. That may have been fine in 1789, when barely a dozen states existed and differences between rural and urban areas were not so pronounced.

But it has become absurd with the passage of 230 years. North Dakota and South Dakota, with a combined, nearly all-White citizenry of about 1,650,000, are represented by four senators, all Republican; California, with a diverse population of about 40 million, is represented in the Senate by two Democrats. It is Republicans who have pulled off the power grab.

But it should not matter whether senators from a new state of D.C. would be blue, red or Day-Glo green: Nobody gets to deny any Americans their rightful votes just because they don’t like who those Americans vote for. . . . 

The House voted last year to make D.C. a state. The Senate has never taken a vote on the question. As of Jan. 20, Senate Democrats can take the next step. It requires only that they close ranks to scrap the filibuster, either in its entirety or more surgically, to advance this cause of full enfranchisement for District residents. The filibuster has already been diminished twice in recent years; such a move is not unprecedented.

It is a stain on our nation that, in the very shadow of the monuments to American democracy, a separate and unequal form of citizenship has been allowed to endure. Democrats can put an end to it once and for all by granting statehood to Washington, D.C. The only question is whether they have the will and the moral conscience to do it.

[At which point, the narrator says “not enough of them did or do”].

Giving full voting rights to the residents of Washington D.C. would fit nicely with the voting rights legislation now pending in Congress, more than eight months after the above was written. If only all fifty Democrats had the will and moral conscience to do something about it.